Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Portugal (Ratification: 1978)

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and the General Confederation of Portuguese Workers - National Trade Unions (CGTP-IN) communicated with the Government’s report.

Article 1 of the Convention. Basic human rights. The Committee previously requested the Government to provide information on the measures adopted in order to ensure full respect for the basic human rights of all migrant workers, irrespective of their legal status, following the adoption of the Strategic Plan for Migration for 2015-2020 (PEM). The Committee notes the Government’s indication, in its report, that, according to the final evaluation report of the PEM, which ended in 2020, its overall execution rate was estimated at 86.9 per cent. The Committee takes note of the adoption of the National Plan for the Implementation of the Global Compact for Migration (PNIPGM), by Resolution of the Council of Ministers No. 141/2019 of 1 August 2019, with a view to implement the United Nations (UN) Global Compact for Safe, Orderly and Regular Migration (UN Resolution, A/73/L.66, 12 December 2018). It notes that the PNIPGM sets 23 objectives articulated around five main dimensions: (1) promoting safe, orderly and regular migration; (2) improving the processes to organize and manage migratory flows; (3) promoting and qualifying migrant reception and integration mechanisms; (4) supporting connections between migrants and their home countries and projects for return; and (5) enhancing development partnerships with countries of origin and transit. The Committee welcomes this information. It however notes that, in its observations, the CGTP-IN highlights that unacceptable living conditions of immigrants resulted in an accelerated spread of the COVID-19, thus revealing the situation of seasonal and temporary immigrant workers who are subject to situations amounting to forced labour, in particular in the agriculture sector. The CGTP-IN adds that no sanction was imposed to those perpetrators, despite the legislative framework in place. The Committee asks the Government to continue to provide information on the nature and impact of the measures taken to ensure full respect for the basic human rights of all migrant workers irrespective of their legal status, in particular in the agriculture sector, in the framework of the National Plan for the Implementation of the Global Compact for Migration or otherwise. It further asks the Government to provide statistical information, disaggregated by sex, nationality and sector of activity, on the number of migrant workers, whether in a regular or irregular situation.

Articles 2–7. Measures to detect, prevent and suppress irregular migration and illegal employment of migrant workers. The Committee previously noted the efforts made by the Government to prevent and combat irregular migration and trafficking in persons, including through the PEM and the Third National Plan on Preventing and Combating Trafficking in Persons (2014-2017). It requested the Government to provide information on the concrete impact of these measures on the reduction of this phenomenon. The Committee notes the Government’s statement that, according to the final evaluation report of the Third National Plan on Preventing and Combating Trafficking in Persons, which ended in 2017, 48 out of the 53 measures established under this plan were executed, in particular to prevent and prosecute trafficking in persons. It also notes the adoption of the IV Action Plan on Preventing and Combating Trafficking in Persons for 2018-2021 (IV PACTSH), adopted by Resolution of the Council of Ministers No. 80/2018, of 7 June 2018, which sets as specific objectives: (1) to raise awareness on trafficking in persons; (2) to ensure that victims have access to their rights; and (3) to promote the fight against organized crime networks. The IV PACTSH foresees, among others, measures to: reinforce inter-institutional cooperation; strengthen the involvement of municipalities and local networks; promote a better monitoring of the formal and informal labour market and of recruitment agencies; promote the prevention of and combat trafficking in supply chains and in public procurement; and improve victims’ access to their rights such as compensation. The Committee further notes that the National Plan for the Implementation of the Global Pact on Migration of 2019, contains several measures aiming at promoting safe and regular migration including through formal migration channels. The Government adds that Law No. 75-B/2020 of 31 December 2020, which approved the budget for the year 2021 foresees the reinforcement of human resources for combating trafficking in human beings, and Law No. 55/2020 of 23 August 2020, which defined priorities in criminal policy for 2020–22 sets as a priority the prevention and suppression of trafficking in persons. The Committee welcomes all these initiatives. In this regard, it notes with interest the ratification on 23 December 2020 by Portugal of the Protocol of 2014 of the Forced Labour Convention, 1930 (No. 29). The Committee however notes that, in its 2020 report, the National Observatory on Trafficking in Persons highlights that 75 per cent of the victims of trafficking in persons identified were trafficked for the purpose of labour exploitation mainly in agriculture, construction, hotels and restaurants and domestic work. Of the victims identified in 2020, 23 per cent were from UE member states and 77 per cent from third countries (compared to 67 per cent in 2019). The Committee further notes that, in April 2021, the United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR) highlighted the increasing trend of trafficking and exploitation of undocumented migrant workers in the agricultural sector and other sectors (E/C.12/PRT/Q/5, 1 April 2021, para. 15). It also notes that, in its 2019 concluding observations, the UN Committee against Torture (CAT) expressed specific concern about (1) reports that law enforcement officers are not adequately trained in identifying victims of trafficking; and (2) delays in the issuance of temporary residence permits for victims. The CAT recommended that the Government intensify its efforts to prevent and combat trafficking in persons, including by putting in place effective procedures for the identification and referral of victims among vulnerable groups, such as asylum seekers and migrants in an irregular situation (CAT/C/PRT/CO/7, 18 December 2019, para. 43 and 44). The Committee notes with concern this information. The Committee therefore asks the Government to provide information on: (i) the proactive measures taken to detect, prevent and suppress irregular migration and illegal employment, including in the framework of the IV Action Plan on Preventing and Combating Trafficking in Persons for 2018-2021 and the National Plan for the Implementation of the Global Pact on Migration; and (ii) the concrete impact of these measures on the reduction of this phenomenon. It also asks the Government to provide information on the specific measures taken to strengthen the monitoring of workplaces in sectors such as agriculture, domestic work and construction, to facilitate the reporting of violations of labour rights therein and to provide reparations, including for undocumented migrant workers. The Committee asks the Government to provide statistical information on the number of labour inspections carried out, migrant workers in an irregular situation or illegally employed identified, as well as on the nature of the infringements identified and the administrative, civil and penal sanctions imposed on employers and organizers of illegal or clandestine movements of migrant workers.

Article 9(1). Measures relating to rights arising out of past employment. The Committee previously noted that section 63(2) of Law No. 84/2007 of 5 November 2007, provides for the fulfilment of fiscal and social security obligations as a condition for the renewal of the residence permit, except if it is the employer who has not respected the obligations concerning social security. It requested the Government to indicate how it is ensured that migrant workers and their family in respect of whom residence permit could not be renewed, enjoy equality of treatment in respect of rights arising out of past employment, in particular as regards remuneration, social security and other benefits. The Committee notes the Government’s repeated statement that section 7 of Law No. 4/2007 of 16 January 2007 on the social security system, sets the principle of non-discrimination, including on the ground of nationality, without prejudice to residency or reciprocity requirements. The Government however adds that several social security benefits, in particular regarding unemployment, illness and family protection, are subjected to a residency requirement, while future entitlements, such as pensions, may be subjected to a reciprocity requirement. Referring to its previous comments regarding section 25 of Law No. 4/2007, which requires the Government to promote the signing of social security coordination instruments in order to ensure the equal treatment of recipients who work or reside in Portugal in respect of protection of acquired rights and future entitlements, the Committee notes that the Government merely refers to the revision, in 2018, of three social security coordination instruments previously signed with Cabo Verde, Mozambique and the Philippines. The Committee notes the lack of information provided by the Government on the measures taken in the framework of section 25 of Law No. 4/2007, since 2018. The Committee again asks the Government to provide information on the measures taken to ensure that migrant workers and their family for whom residence permit could not be renewed, enjoy equality of treatment in respect of rights arising out of past employment, in particular as regards social security and other benefits but also remuneration. It asks the Government to provide information on the number of social security coordination instruments signed pursuant to section 25 of Law No. 4/2007.

Article 9(3). Costs of expulsion. Previously the Committee noted that, according to section 213 of Foreigners Act No. 23/2007, “expenses necessary to leave the country that cannot be supported by the foreign national, or should not be supported by him under special international conventions, shall be borne by the State”, and that the State may bear the expenses for voluntary return of the members of the migrant worker’s family upon the expulsion or deportation of the migrant worker. In light of the absence of information provided, the Committee again asks the Government to take appropriate measures so as to ensure that migrant workers in an irregular situation for reasons that cannot be attributed to them are not required to bear the costs of expulsion, in conformity with Article 9(3) of the Convention. It further asks the Government to provide information on the application in practice of section 213 of Act No. 23/2007, including on the number of migrant workers and family relatives for whom the State did or did not bear the expenses to leave the country in case of expulsion.

Articles 10 and 12. Equality of opportunity and treatment. The Committee previously requested the Government to provide information on the concrete impact of the measures and actions implemented to guarantee equality of opportunity and treatment for migrant workers in accordance with Articles 10 and 12 of the Convention, including women migrant workers. The Committee notes the Government’s indication that several measures where implemented in the framework of the Strategic Plan for Migration for 2015–2020 (PEM) in order to enhance a better integration of immigrants. In that regard, it notes that the National Plan for the Implementation of the Global Compact for Migration (PNIPGM) includes 97 measures aiming, in particular, at the integration of immigrants, including by : (1) offering Portuguese language courses, (2) ensuring access to school for children and young people, as well as access to education and professional training for adults, (3) improving the conditions of access to housing, health and social protection, and (4) encouraging the integration and participation of immigrants into the society. The Committee notes that, as a result of the PNIPGM, a new programme for Portuguese language courses (“Português Língua de Acolhimento”) was established by Ordinance No. 183/2020, of 5 August 2020. The Government indicates that this new language training has been adjusted to the specific learning needs of immigrants, as a way to promote social inclusion and cohesion. The Committee welcomes this information. It also notes the general reference made by the Government to several instruments adopted to promote equality and non-discrimination, such as for example, the National Strategy for Equality and Non Discrimination for 2018–2030 (ENIND), but observes that no specific information is provided by the Government on the specific measures implemented to enhance equality of opportunity and treatment for migrant workers. In that regard, the Committee refers to its 2021 direct request on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). It notes that, in its 2020 report, the High Commission for Migration (ACM) highlights that (1) there are higher unemployment rates among foreigners; (2) the insertion of foreigners into the Portuguese labour market still does not necessarily reflect their qualifications as they continue to be more represented in lower professional groups; (3) foreign workers continue to have lower average wages than nationals and are more exposed to poverty and social exclusion; and (4) there is an increase in fatal and non-fatal work accidents among foreigners, reflecting the employability of foreign workers in sectors with greater exposure to occupational accidents, such as construction. In that regard, it notes, from the statistical information provided by the Government, that the number of victims of work accident identified through surveys of the Working Conditions Authority (ACT) increased from 119, in 2017, to 355, in 2019, with 4 victims from UE countries and 37 victims from third-countries (compared to 2 and 7 victims identified in 2017, respectively). It further notes that, according to the 2020 Migrant Pay Gap report of the ILO, the wage gap between migrants and native citizens in Portugal increased from 25.4 per cent in 2015 to 28.9 per cent in 2020 (“Table E-1: the 20 widest migrant pay gaps“, p. 16). The Committee therefore asks the Government to increase its efforts in order to guarantee in practice equality of opportunity and treatment for migrant workers in accordance with Articles 10 and 12 of the Convention. It asks the Government to provide information on the nature and results of any measures implemented to that end, as well as on any obstacle encountered.

Article 13. Family reunification. The Committee previously noted that the Office for the Support of Family Reunification (GARF), established in the framework of the ACM, is responsible for providing information and assisting migrant workers in the process of family reunification. It requested the Government to provide information on any additional measures adopted to facilitate migrant workers’ family reunification. The Committee takes note of the Government’s indication that no significant legislative change has been made regarding family reunification which is still regulated by the Foreigners Act, but observes that no information is provided by the Government on the implementation of these provisions in practice or on number of migrant workers who have benefited from such measures. The Committee observes that the National Plan for the Implementation of the Global Pact on Migration, adopted in 2019, sets as specific objective to promote family reunification. The Committee again asks the Government to provide concrete information on any measures adopted to facilitate migrant workers’ family reunification and their impact, such as statistical data on (i) the number of migrant workers who have benefited from such measures, as well as from the assistance of the GARF, (ii) the number of applications for family reunification which succeeded, and (iii) any difficulties that have arisen in their implementation.

Article 14(b). Recognition of diplomas and qualifications. The Committee takes note of Law No. 31/2021 of 24 May 2021, which provides for the simplification of the procedures associated with the recognition of professional qualifications, transposing Directive 2005/36/EC of the European Parliament and of the EU Council of 7 September 2005 on the recognition of professional qualifications. The Committee welcomes this information. The Committee asks the Government to provide information, including studies or surveys, on any obstacles encountered in practice regarding the recognition of diplomas and qualifications of third-country nationals. It further asks the Government to provide information on any specific legislative provisions regarding recognition of the professional qualifications of third-country nationals.

Enforcement. Referring to its previous comments, the Committee notes, from the statistical information provided by the Government, that the number of foreign workers covered by labour inspections increased from 2,147 in 2017 to 3,007 in 2019, and observes that, in 2019, 2,244 men were covered by labour inspections compared to only 676 women. It further notes that the number of migrant workers in an irregular situation identified by the ACT increased from 50 in 2017 to 87 in 2019. The Committee asks the Government to continue to provide information on the activities of the Working Conditions Authority with respect to migrant workers, including: (i) statistical data, disaggregated by sex, economic sector and legal status, (ii) on the number of inspections carried out and of migrant workers covered, as well as (iii) on the nature of fines and other sanctions imposed and remedies granted. It further asks the Government to provide summaries of any administrative or judicial decisions adopted with respect to the equality and non-discrimination provisions in the legislation regarding migrant workers.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and of the General Workers’ Union (UGT), both received on 28 August 2017, as well as of the General Confederation of Portuguese Workers – National Trade Unions (CGTP-IN), received on 1 September 2017, all forwarded by the Government.

Article 1 of the Convention. Basic human rights. The Committee previously noted the diverse measures adopted by the Government to ensure respect for the human rights of all migrant workers but expressed concern at the potential impact of the measures adopted to address the economic and financial crises on the enjoyment of migrant workers’ human rights. The Committee notes the Government’s statement, in its report, that despite the economic and financial situation of recent years and the simultaneous rise in unemployment, particularly among migrant workers, the Government successfully maintained the most important elements of its policies, programmes and services with a view to better integrating migrant workers. The Government adds that the Office of the High Commissioner for Migration provided support to migrant workers and refugees, including through the implementation of the Mentors for Migrants programme, in cooperation with local partners, to promote exchange of experiences and support between migrants. The Committee notes that several initiatives were implemented to offer Portuguese language courses for migrants and refugees and that the Office of the High Commissioner for Migration established to this end an online Portuguese platform accessible in various languages, including English and Arabic. Noting that the Second Plan for Immigrant Integration ended in 2013, the Committee takes note of the adoption of the Strategic Plan for Migration (2015–2020) which includes over 100 measures aiming at the integration of immigrants; the promotion of integration of new citizens; the coordination of migration flows; the improvement of legislation on migration and the quality of migration services; as well as the enhancement, monitoring and supporting of the return of citizens who have emigrated. The Committee asks the Government to continue to provide information on the measures adopted in order to ensure full respect for the basic human rights of all migrant workers irrespective of their legal status, in particular in the framework of the Strategic Plan for Migration (2015–2020). It further asks the Government to provide statistical information, disaggregated by sex, nationality and sector of activity, on the number of migrant workers, whether in a regular or irregular situation.

Articles 2 to 7. Measures to combat irregular migration. The Committee previously noted the efforts made by the Government to address irregular migration, including through the adoption of Act No. 29/2012, amending Act No. 23/2007 and transposing Directive No. 2009/52/CE; the Second Plan for Immigrant Integration (2010–13); as well as cooperation with other countries to prevent and combat irregular immigration and human trafficking. The Committee notes the CGTP-IN’s indication that further amendments were adopted concerning Act No. 23/2007, namely Acts Nos 56/2015 and 63/2015, of 23 and 30 June 2015, respectively. The CGTP-IN reiterates its concerns regarding Act No, 23/2007 of 4 July 2007 that could create difference of treatment between migrant workers and ultimately force unskilled workers to remain in irregular situations. The Committee notes the Government’s statement that specific measures are planned in the framework of the Strategic Plan for Migration for 2015–2020 for preventing and combating labour exploitation of foreign workers who are not legally entitled to work, including by reinforcing inspections of employment entities, and disseminating information on the rights and obligations of immigrant workers. It further notes the adoption of the Third National Plan on Preventing and Combating Trafficking in Persons (2014–2017). It observes however, from the statistical information provided by the Government, that the number of labour inspections involving arrest as a result of trafficking in persons for the purposes of labour exploitation increased from 20 in 2014 to 44 in 2016. The Committee asks the Government to provide information on the measures taken to effectively detect, prevent and suppress irregular migration and illegal employment, including in the framework of the Third National Plan on Preventing and Combating Trafficking in Persons (2014–2017), and on the concrete impact of these measures on the reduction of this phenomenon. It also asks the Government to provide statistical information on the number of labour inspections carried out and of migrant workers in an irregular situation or illegally employed, as well as on the nature of the infringements identified and the administrative, civil and penal sanctions imposed on employers. The Committee further asks the Government to provide specific information on the penalties and other measures adopted against organizers of illegal or clandestine movements of migrant workers.

Article 9(1). Measures relating to rights arising out of past employment. The Committee previously noted that section 63(2) of Act No. 84/2007 provides for the fulfilment of fiscal and social security obligations as a condition for the renewal of the residence permit, except if it is the employer who has not respected the obligations concerning social security (measure No. 22 of the Second Plan for Immigrant Integration 2010–13) and requested the Government to indicate how it was ensured that migrant workers whose situation could not be regularized, and their families, enjoy equality of treatment in respect of rights arising out of past employment, in particular as regards remuneration, social security and other benefits. The Committee notes the Government’s indication that section 7 of the Social Security System Act No. 4/2007 of 16 January 2007 sets the principle of non-discrimination, including on the ground of nationality, without prejudice to residency or reciprocity requirements. The Government however adds that there may be a residency requirement for the receipt of some social benefits, but that section 25 of the above-mentioned Act requires the Government to promote the signing of social security coordination instruments in order to ensure the equal treatment of recipients who work or reside in Portugal in respect of protection of acquired rights and future entitlements. The Committee asks the Government to provide information on the measures taken to ensure that migrant workers for whom residence permit could not be renewed, and their family, enjoy equality of treatment in respect of rights arising out of past employment, in particular as regards social security and other benefits but also remuneration. It asks the Government to provide information on the number of social security coordination instruments signed pursuant to section 25 of the Social Security System Act No. 4/2007. Noting that the Second Plan for Immigration Integration ended in 2013, it asks the Government to provide information on any actions taken to replace measure No. 22 of the Plan, including in the framework of the Strategic Plan for Migration (2015–2020).

Article 9(3). Expulsion. The Committee previously noted that, according to section 213 of Act 23/2007, “expenses necessary to leave the country that cannot be supported by the foreign national, or should not be supported by him under special international conventions, shall be borne by the State”, and that the State may bear the expenses for voluntary return of the members of the migrant worker’s family upon the expulsion or deportation of the migrant worker. Noting the Government’s indication that Act No. 23/2007 was amended by Act No. 63/2015 of 30 June 2015, the Committee however notes that the wording of section 213 remains unchanged. It notes the CIP’s observation that the national legislation is in conformity with the provision of the Convention but that additional information could be requested on the practical application of section 213 of Act No. 23/2007. The Committee again asks the Government to take appropriate measures so as to ensure that migrant workers in an irregular situation for reasons that cannot be attributed to them are not required to bear the costs of expulsion, in conformity with Article 9(3) of the Convention. It further asks the Government to provide information on the application of section 213 of Act No. 23/2007 in practice, including on the number of migrant workers and family relatives for whom the State did or did not bear the expenses to leave the country in case of expulsion.

Articles 10 and 12. Equality of opportunity and treatment. Referring to its previous comments where it requested the Government to provide information on the concrete impact of legislative and practical measures adopted in the framework of the Second Plan for Immigrant Integration 2010–2013, as well as any other measures adopted to guarantee equality of opportunity and treatment for migrant workers in accordance with Articles 10 and 12 of the Convention, including women migrant workers, the Committee takes note of the final implementation report on the Second Plan for the Integration of Immigrants which includes a chapter on employment, vocational training and entrepreneurship. It notes the Government’s statement that the Strategic Plan for Migration (2015–2020), which covers not only immigrants but also emigrants and refugees, takes into account the importance of strengthening the many sectors in which integration is needed, such as education, employment, health, housing, justice and combating trafficking in persons, while maintaining cross-cutting issues such as gender, racism, discrimination and the promotion of diversity. It further notes that the Observatory for Migration established in the framework of the High Commissioner for Migration published several studies and collected statistical information on the integration of migrants and their situation in the labour market. The Committee notes the UGT’s observation that, while the national legislation prohibits discrimination against foreign workers in the Labour Code, there is a need for promoting the integration of foreign workers in practice, through inclusive policy, in order to ensure their access to accommodation, health, education and social protection. The UGT adds that despite the efforts made some difficulties persist in practice, in particular to address discrimination at the workplace, as a result of the situation of vulnerability of migrant workers who have a low level of awareness of their rights. The UGT further expresses particular concerns about the ineffectiveness of the labour inspectorate or judicial system. The Committee asks the Government to provide information on the concrete impact of the actions implemented in the framework of the Strategic Plan for Migration (2015–2020), as well as any other measures adopted to guarantee equality of opportunity and treatment for migrant workers in accordance with Articles 10 and 12 of the Convention, including women migrant workers. It further asks the Government to provide information on the main difficulties faced by men and women migrant workers, respectively, in the country according to the information gathered and research developed by the Observatory for Migration.

Article 13. Family reunification. The Committee previously noted the establishment of the Office for the Support of Family Reunification (GARF) in the framework of the High Commissioner for Migration, with the objective of providing information and assisting migrant workers in the process of family reunification, and requested the Government to provide further information on the concrete measures adopted to this end. The Committee notes the Government’s indication that the GARF provides more particularly information and assistance on the documents needed to start the family reunification process, legal deadlines, prior steps to be taken by the persons concerned, and documents certification and translation. The GARF also monitors ongoing cases, and requests the relevant information to facilitate the success of family reunification applications. The Committee notes, from the statistical information provided by the Government, that there has been a consistent need for the services offered by the GARF with 5,517 requests in 2014; 4,929 in 2015 and 5,622 in 2016. The Committee asks the Government to provide concrete information on any additional measures adopted to facilitate migrant workers’ family reunification, including information on the number of migrant workers who have benefited from such measures, as well as from the assistance of the GARF, the number of applications for family reunification which succeeded, and any difficulties that have arisen in their implementation.

Enforcement. Referring to its previous comments where it noted that the number of cases involving migrant workers in which the Working Conditions Authority (ACT) imposed fines decreased from 340 in 2010 to 62 in 2012, the Committee notes that the Government does not provide updated information in that regard. It notes however, from the statistical information provided by the Government, that the number of foreign workers covered by labour inspections decreased from 3,604 in 2014 to 3,195 in 2016, of which 82 were in an irregular situation, and observes that 2,367 men were covered by labour inspections in 2016 compared to only 828 women. The Committee asks the Government to provide information on the activities of the Working Conditions Authority with respect to migrant workers, including statistical data, disaggregated by sex, economic sector and legal status, on the number of inspections carried out and of migrant workers covered, as well as on the number and nature of fines and other sanctions imposed and remedies granted. It also asks the Government to provide summaries of any administrative or judicial decisions adopted with respect to the equality and non-discrimination provisions in the legislation regarding migrant workers.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the observations of the General Union of Workers (UGT) and the General Confederation of Workers of Portugal (CGTP) that refer to the implementation of the Convention.

Article 1 of the Convention. Basic human rights. The Committee notes that according to the Government, the national Constitution provides that foreigners and stateless persons who are in the country, whether as residents or otherwise, enjoy the same rights and are subject to the same obligations as Portuguese citizens. The Government also refers to measures that have been adopted in the framework of the Second Plan for Immigrant Integration (2010–13) to ensure the right to health and education for all migrants irrespective of their legal situation as well as to ensure access to justice in particular for domestic workers, victims of human trafficking and in the case of serious crimes of employment of migrants in an irregular situation. The Committee notes, however, that the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed concerns regarding the response by the Government to the current financial and economic crisis which should not lead to “a situation which would increase poverty and potentially give rise to racism, racial discrimination, xenophobia and related intolerance against foreigners, immigrants” (CERD/C/PRT/CO/12-14, 13 April 2012, paragraph 20). While noting the diverse measures adopted by the Government to ensure respect for the human rights of all migrant workers, the Committee requests the Government to ensure that the measures adopted to address the current economic and financial crises do not hamper the enjoyment of migrant workers’ human rights. The Committee further requests the Government to continue to provide information on the measures adopted in order to ensure respect for the basic human rights of all migrant workers irrespective of their legal status.

Articles 2 to 7. Measures to combat irregular migration. The Committee notes the efforts made by the Government to address irregular migration. The Committee notes in particular that the Government refers to the adoption of Act No. 29/2012 which transposes Directive No. 2009/52/CE and increases criminal sanctions for any assistance given to irregular immigration, criminalizes employment of migrant workers in an irregular situation and increases the fines imposed on employers that have recourse to them. The Committee further notes that, in the framework of the Second Plan for Immigrant Integration, measures have been taken to increase by 10 per cent the number of inspections carried out by the Foreigner Frontiers Service or the Conditions of Labour Authority and to reinforce border (Integrated Borders Management) protection against irregular immigration and human trafficking. The Government has established cooperation with other countries to prevent and combat irregular immigration and human trafficking, and to better manage circulation at borders. It also contributes bilaterally and multilaterally to the exchange of information on migration issues and has established the Advisory Council on Immigration Issues aimed at ensuring the participation of migrant workers’ associations as well as workers’ and employers’ organizations in the development of public policies concerning migration. With respect to human trafficking, the Second Plan for Immigrant Integration provides for four concrete measures with a view to combating this crime, establishing a network for the assistance, protection and reception of victims and consolidating the Human Trafficking Observatory. The Committee welcomes the statistical information disaggregated by sex provided by the Government on the number of inspection procedures carried out in enterprises, the number of migrant workers in an irregular situation entering the country, specifying country of origin and sector of employment. The Committee requests the Government to continue to provide information on the measures adopted to combat irregular immigration and, in particular, on the concrete impact of these measures on the reduction of this phenomenon.

Article 9(1). Measures relating to rights arising out of past employment. The Committee notes the Government’s indication that section 63(2) of Act No. 84/2007 provides for the fulfilment of fiscal and social security obligations as a condition for the renewal of the residence permit. However, in order not to prejudice migrant workers, the Second Plan for Immigrant Integration provides that the residence permit will be nonetheless renewed if it is the employer who has not respected the obligations concerning social security (measure No. 22 of the Plan). The Committee requests the Government to provide information on the measures which ensure that migrant workers whose situation could not be regularized and their families enjoy equality of treatment in respect of rights arising out of past employment, in particular as regards remuneration, social security and other benefits. Please also indicate how many migrant workers have benefited from measure No. 22 and other benefits under the Second Plan for Immigrant Integration.

Article 9(3). Expulsion. The Committee notes that according to section 213 of Act 23/2007 “Expenses necessary to leave the country that cannot be supported by the foreign national, or should not be supported by him under special international conventions, shall be borne by the State.” It also provides that the State may bear the expenses for voluntary return of the members of the migrant worker’s family upon the expulsion or deportation of the migrant worker. The Committee requests the Government to take appropriate measures so as to ensure that migrant workers in an irregular situation for reasons that cannot be attributed to them are not required to bear the costs of expulsion, in conformity with Article 9(3) of the Convention.

Articles 10 and 12. Equality of opportunity and treatment. The Committee notes that section 4 of the Labour Code provides that migrant workers lawfully in the country enjoy the same rights and obligations as Portuguese workers. Section 24(1) provides for equal opportunities and treatment regarding access to employment, vocational training, career advancement and conditions of work, with respect to a number of grounds, including nationality. The Committee notes that the Second Plan for Immigrant Integration contains 17 areas of strategic intervention, including access to social rights and promotion of employment and vocational training, education and health, with the objective of ensuring greater equality of opportunities and reinforcing social cohesion. These measures have also been taken into account in the “Main lines for the Plan for 2012–15”. The Government established the Bureau for the Professional Insertion of Migrants which provided training to 342 migrant workers in 2010 and 290 in 2011, and the Programme for Unemployed Migrant Workers which provided assistance to 12,751 migrant workers in 2010 and 13,802 in 2011. The Committee notes, however, that the CERD noted with concern that immigrant women face multiple discrimination (for example with respect to remuneration) and urged the Government to evaluate and monitor racial discrimination against women, particularly immigrant women (CERD/C/PRT/CO/12-14 13 April 2013, paragraph 18). The Committee notes in this respect that the Second Plan for Immigrant Integration also contains measures aimed at mainstreaming gender, as well as measures related to the prevention of discrimination and racism by the Commission for Equality and Against Racial Discrimination (CICDR) including to increase its competencies. The Government is also implementing the Immigrant Entrepreneurship Promotion Project as well as the Intercultural Mediation in Public Services Project (MISP). Since 2007, the network for the labour insertion of migrant workers (REDE GIP Immigrant), constituted by 25 Employment Bureaus, works throughout the country in conjunction with the Institute for Employment and Professional Training. The Committee requests the Government to provide information on the concrete impact of legislative and practical measures adopted in the framework of the Second Plan for Immigrant Integration as well as any other measures adopted to guarantee equality of opportunity and treatment for migrant workers in accordance with Articles 10 and 12 of the Convention, including women migrant workers. The Committee further requests the Government to provide information concerning the main difficulties faced by men and women migrant workers respectively, in the country according to the information gathered and research developed by the Observatory for Migration established in the framework of the High Commissioner for Immigration and Intercultural Dialogue.

Article 13. Family reunification. The Committee notes that in reply to the UGT’s comment on the need for policies on family reunification, the Government points to the Second Plan for Immigrant Integration which provides for measures in this regard. The Committee further notes the establishment of the Office for the Support of Family Reunification (GARF) in the framework of the High Commissioner for Immigration and Intercultural Dialogue, with the objective of providing information and assisting migrant workers in the process of family reunification. Please provide further information on the concrete measures adopted to facilitate migrant workers’ family reunification, particularly by the GARF, including information on the number of migrant workers who have benefited from such measures and any difficulties that have arisen in their implementation.

Enforcement. The Committee notes the Government’s indication that the Authority for the Conditions of Work (ACT) had imposed fines with respect to 340 cases involving migrant workers in 2010, 234 cases in 2011 and 62 cases in 2012. The Committee requests the Government to continue to provide information on measures by the ACT with respect to migrant workers as well as on any administrative or judicial decisions adopted with respect to the equality and non-discrimination provisions in the legislation regarding migrant workers.

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

Article 1 of the Convention. Basic human rights of all migrant workers. Recalling the obligation of the Government to respect the basic rights of all migrant workers, irrespective of their legal situation in the receiving country, the Committee would be grateful if the Government would provide information on the relevant legislative or administrative provisions.

Articles 2 to 7. Measures to combat illegal immigration. The Committee notes the adoption of Act No. 23/2007 of 4 July 2007 and its implementing regulations of 5 November 2007, which establish the legal framework for the entry, residence, departure and expulsion of foreign nationals from the country. In particular, the Committee notes sections 181 et seq. of the Act which confirm the penalties previously established by Act No. 4/2001 in the event of infringements and crimes related to illegal immigration, such as assisting in illegal immigration and the recruitment of immigrants for profit. The Committee further notes that the Act includes the possibility of granting the victims of trafficking a one-year residence permit. The Committee asks the Government to provide detailed information on the effect given in practice to these provisions, including relevant court rulings and initiatives undertaken by the Foreigners and Frontiers Service to combat irregular immigration. The Committee would also be grateful to be provided with information on irregular migration for employment originating from or towards Portugal, or in transit through the country, and any other information on the measures adopted or envisaged, in collaboration with the organizations of employers and workers.

Article 8. Non-return in the event of loss of employment. Noting that, under the terms of Act No. 23/2007, authorization to reside in the country for work-related reasons is intrinsically bound up with the existence of an employment contract, the Committee asks the Government to clarify whether, in the event of loss of employment, migrant workers who have resided legally in the territory maintain their residence permit, in accordance with Article 8 of the Convention. The Committee also asks the Government to indicate the manner in which it is ensured that such workers benefit from equal treatment with that of nationals in relation to security of employment, the provision of alternative employment, relief work and retraining.

Article 9(3). Expulsion. The Committee notes that sections 134 to 180 of Act No. 23/2007 govern the expulsion of workers who are in an illegal situation. In particular, section 172 provides that the costs of expulsion shall be compensated in accordance with the criteria established by the European Council. The Committee understands that the Government is referring to Council Decision No. 14698/03 of 3 December 2003 setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third-country nationals, where expulsion cannot be carried out at the charge of the national or nationals of the country concerned. Considering that the information provided does not reply to its previous direct request, the Committee recalls that, in accordance with Article 9(3) of the Convention, in case of expulsion of the worker or his or her family, the cost shall not be borne by them, and reiterates its request for information on the costs of expelling workers in law and practice.

Article 9(1) and (4). Regularization and measures relating to rights arising out of past employment. The Committee notes that, according to the Government, it has been necessary to have recourse periodically to extraordinary measures for the regularization of illegal immigrant workers, as in the case of the Lula Agreement of 2003 respecting Brazilian workers. The Committee takes this opportunity to emphasize that, due to the uncertainty surrounding their situation, illegal migrant workers are particularly vulnerable to abuse and it is therefore fundamental to identify illegal workers as rapidly as possible and to decide whether or not they are to be regularized. Moreover, if they are regularized, such workers should benefit from all the rights granted to migrant workers who have entered the country legally. In the light of the above, the Committee would be grateful if the Government would provide information on the implementation of the regularization measures adopted and their results and invites it to continue providing information on any other regularization measures adopted in future. In the case of migrant workers who have not been regularized, please provide information on the legislative measures which ensure that such workers and their families enjoy equality of treatment in respect of rights arising out of past employment, in particular as regards remuneration and social security.

Articles 10 and 12. Equality of opportunity and treatment. The Committee notes that, according to the UGT, the process of the integration of migrant workers continues to be problematic. The Committee recalls that the Convention addresses not only the principle of quality of treatment, but also equality of opportunity and requires the adoption of an active policy to ensure respect of this principle in practice. Noting the Immigrant Immigration Plan (PII), as well as the mandate of the High Commissioner for Immigration and Ethnic Minorities and of the Commission for Equality and Against Racial Discrimination in this area, the Committee asks the Government to provide detailed information on the national policy designed to guarantee equality of opportunity and treatment for migrant workers and their families in the fields enumerated in Article 10 of the Convention, as well as the measures adopted for its implementation, with particular reference to migrant women workers. Please also indicate the legislative measures and educational programmes adopted in consultation with employers’ and workers’ organizations to promote acceptance and compliance with this policy, and any specific measures taken to eliminate discriminatory practices against migrant workers and guarantee their equality of treatment with respect to conditions of work in accordance with Article 12 of the Convention.

Practical application. See comments under the Migration for Employment Convention (Revised), 1949 (No. 97).

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

The Committee notes the comments by the Confederation of Trade and Services (CCSO) and the General Union of Workers (UGT) dated 31 July 2007, emphasizing the importance of taking a transversal view of the problem of migration and promoting the integration of migrant workers by enhancing their rights, and particularly by guaranteeing the right to family reunification. The CCSO also stresses the urgent need for a cross-cutting approach to immigration based on: (a) the regularization of all immigrants; (b) the facilitation of legal immigration; and (c) immigration based on effective integration policies.

The Committee notes with interest the comprehensive legislative and policy measures taken since the Government’s last report to further strengthen its migration policy and the protection of the rights of migrant workers. The Committee notes in particular Act No. 23/2007 of 4 July 2007 and its implementing Decree of the same year which establish the legal framework for the entry, residence, departure and expulsion of foreign nationals, and provide for the possibility of granting a one-year residency permit to victims of trafficking, as well as the new legislation in the area of social security and non-discrimination. In addition, the Committee notes the National Action Plan for Inclusion for the period 2006–08, and the Immigration Integration Plan (PII) intended to promote the integration of immigrants into the country through various measures in the fields of employment, vocational training, housing, social security, the prevention of discrimination and the promotion of gender equality. According to the CCSO, the Plan provides a framework for the country’s objectives and undertakings with regard to policies concerning the reception and integration of immigrants. The Committee further welcomes the establishment of the High Commissioner for Immigration and Ethnic Minorities (ACIME) (2002) and the Committee to Administer the Framework Programme for Solidarity and Management of Migration Flows (2006). The Committee asks the Government to provide information on the measures taken or envisaged, including under the PII, to promote the effective integration of migrant workers, taking into account their concerns relating to family reunification, in accordance with Articles 12(e) and 13 of the Convention, and to facilitate migration for employment through legal channels. Recalling Article 9(4) of the Convention, the Committee also asks the Government to provide information on any measures taken or envisaged to regularize the situation of migrants in an irregular situation.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied in the Government’s report.

1. The Committee notes the adoption of amendments to the regime governing the entry, stay, exit and repatriation of foreigners on Portuguese territory since the Government’s last report. The Committee therefore asks the Government to provide detailed information on the implementation of the new provisions of law or regulations adopted. It also would be grateful if the Government would state how the current trends in migration flows have affected the content and implementation of its national migratory policy and legislation.

2. Regarding penal rules in case of aid to illegal entry and stay in the national territory, the Committee notes the information supplied by the Government in its last report. It also notes that with Decree-Law 4/2001 a new type of crime was created: that of recruiting illegal immigrants for work, with the intention of making profits. A person guilty of such a crime will be sentenced to one to four years’ imprisonment, and if the crime is committed repeatedly, to two to five years. Attempt is also punishable. The responsibility of the employer is also strengthened: an enterprise that employs an illegal worker is subject to the payment of a fine, which depends on the size of the enterprise. The Committee requests the Government to supply information on the impact of the new provisions aimed at penalizing the illegal recruitment and employment of migrant workers. The Committee asks the Government to indicate whether courts of law or other tribunals have given decisions regarding the abovementioned measures. If so, please supply the text of the decisions.

3. The Committee notes the Government’s intention to provide data on the costs of expulsion of a migrant worker. The Committee also would be grateful if the Government would provide information on the procedure involved as well as the number of expulsion orders, together with data on the presence of illegal immigrants in Portugal. In this respect, please also include information on readmission agreements concluded with other States.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee takes note of the information supplied by the Government in reply to its previous comments.

The Committee requests the Government to supply information on the effect given in practice to section 114 of Legislative Decree No. 59/93 of 3 March 1993 by virtue of which, in the event of the departure from the country of a migrant worker, the expenditure incurred in respect of him or his family, which cannot be charged to him by virtue of the provisions of international Conventions and which cannot be borne by the transport companies, shall be covered by the State. It also requests the Government to continue supplying general information on the practical application of the Convention in accordance with point V of the report form.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

With reference to the comments that it has been making for several years concerning the application of Article 9, paragraph 3, of the Convention, the Committee notes with satisfaction the repeal of Legislative Decree No. 264/B/81 concerning the entry, stay, departure and expulsion of foreigners, by Legislative Decree No. 59/93 of 3 March 1993 under which, in the case of the departure from the country of a migrant worker, the costs incurred in respect of him or his family, which cannot be charged to him by virtue of the provisions of international Conventions and which cannot be borne by the transport companies, shall be covered by the State (section 114 of Decree No. 59/93).

The Committee is also addressing a request directly to the Government on certain points.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Article 2, paragraph 2, and Article 7, of the Convention. The Committee notes the creation of the Economic and Social Council, under Act No. 108/91 of 17 August 1991, in which members of the different sectors of society will pronounce themselves on economic and social subjects. It requests the Government to provide the Office with the Regulations to be issued under section 2, subsection 2, in connection with section 15, according to which the Council will have the right of initiative in certain specific cases. It further asks the Government to inform it how the questions mentioned in the report form under present Articles of the Convention are treated in practice by the Council.

Article 9, paragraph 3. The Committee notes the draft amendment to Legislative Decree No. 264/B/81 concerning the entry, stay, departure and expulsion of foreigners, which has been approved by the Council of Ministers. It asks the Government to provide the Office with a copy of the final text (especially section 27, subsection 4, referred to in section 116, subsection 4 of the draft) and to inform it about the date of coming into force.

Articles 10 and 12(d). Please refer to the observation under Convention No. 97.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 2, paragraph 2, and Article 7 of the Convention. Further to its earlier comments, the Committee notes from the Government's reply that the Committee's suggestions will be taken into account in any future revision of the legislation relating to emigration and migration. The Committee recalls that its comments have referred to consultations with the representative organisations of employers and workers in the detection and the suppression of clandestine movements of migrants and their illegal employment; and to the laws, regulations and other measures taken to prevent and eliminate the abuses against which the Convention is directed.

Article 9, paragraph 3. With reference to its previous comments concerning the amendment of Legislative Decree No. 264/B/81 so as to ensure that, in case of expulsion, the cost of expulsion shall not be borne by the migrant worker and his family, the Committee notes with interest the Government's intention to introduce the appropriate provision into the legislation in order to give full effect to the Convention on this point. The Committee hopes that the Government will soon be in a position to report that the legislation has been amended.

Articles 10 and 12(d). See the direct request being made this year under Convention No. 97, as follows:

Article 6, paragraph 1(b), of the Convention. For many years, the Committee has been drawing the Government's attention to the need to remove the reciprocity requirement from Act No. 2127 of 3 August 1965 on industrial occupational accidents and diseases which is incompatible with Article 6 of the Convention concerning equality of treatment in respect of such benefits to all foreign workers without any condition of reciprocity. In its previous report the Government indicated that this legislation had been tacitly repealed as being incompatible with the Constitution, and stated its readiness to amend the Act to bring it into formal conformity with the Convention. In its last report the Government states that it considers Act No. 2127 as being still in force and in conformity with the Convention. The Government also refers in this connection to resolution No. 642/83 of 1 June 1983 as giving effect to the Convention on this point. However, section 10 of the resolution also contains a reciprocity requirement applicable to foreign workers as regards compensation for industrial accidents and occupational diseases.

Consequently, the Committee once again emphasises that the reciprocity requirement prescribed in these texts is not in conformity with the Convention. It again invites the Government to re-examine its position as regards the need to remove the reciprocity requirement in these two texts, in order to guarantee all foreign workers equality of treatment in respect of compensation for industrial accidents and occupational diseases without any condition of reciprocity.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee has noted the statistical information supplied by the Government in reply to its previous direct request.

Article 2, paragraph 2, and Article 7 of the Convention. In reply to the Committee's previous comments, the Government indicates that employers' and workers' organisations participate in the application of national employment and training policies and within that general framework may also act in matters covered by the above provisions of the Convention. The Government reiterates that trade unions can exercise a certain control over the irregular situation of migrant workers in branches of activity covered by collective agreements and can co-operate also with the Labour Inspection to combat any possible abuses involving foreign workers. The Committee takes note of these explanations and hopes that on the occasion of a future revision of the legislation relating to emigration and migration, the Government will be able to reflect that practice in an explicit manner.

Article 9, paragraph 3, Articles 10 and 12(d). The Committee notes that the process of revision of Decree-Law No. 264/B/81 is under way. The Committee hopes that the Government will also introduce the necessary amendments to Act No. 2127 of 3 August 1965 on industrial accidents and occupational diseases, in conformity with its earlier assurances, and that the next report will indicate the progress made in this regard.