Migration for Employment Convention (Revised), 1949 (No. 97) - Guatemala (Ratification: 1952)

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

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government, as well as on the basis of the information at its disposal in 2019.

Article 1(a) of the Convention. National migration policy. In its previous comment, the Committee requested the Government to provide information on any progress made in the development, establishment and monitoring of migration policy as envisaged in section 116 of the Migration Code. The Committee notes the Government’s indication in its report that a comprehensive public policy on migration has not yet been adopted under the terms of the Migration Code. The Committee observes that the Government has adopted a National Decent Employment Policy 2017–32, which includes a National Programme of Migration for Development. The Committee requests the Government to provide information on the results of the National Programme of Migration for Development. The Committee also requests the Government to provide information on the adoption of a migration policy under the terms of section 116 of the Migration Code.

Statistics on migration movements. Further to its previous request for the provision of statistical data on migration movements, the Committee notes and welcomes the detailed information, disaggregated by sex, provided by the Government on the immigration and authorized emigration of workers. In particular, the Committee notes that the statistics show that over the past two years the majority of foreign nationals authorized to work in Guatemala are nationals of the Republic of Korea, El Salvador, the Bolivarian Republic of Venezuela, Nicaragua, Honduras, Mexico and Colombia. The Committee also notes the figures on the temporary migration of Guatemalan workers with job offers to Mexico (36,427 workers since 2014), United States (five workers since 2014) and Canada (25,404 workers since 2014). Finally, the Committee also notes the data provided indicating that the great majority of these temporary migrant workers are men (95.42 per cent).

Article 1(a) and (b). National laws and regulations on migration. In its previous comment, the Committee requested the Government to provide information on the National Migration Authority and the Guatemalan Institute of Migration, both established under the terms of the Migration Code, and on the effect given in practice to the Code. The Committee notes the Government’s indication that the Migration Code envisages a period of two years for the process of the transition of the General Department of Migration in the Ministry of the Interior to the establishment of the Guatemalan Institute of Migration, and that Government Decision No. 83-2017 was adopted respecting institutional continuity while the Guatemalan Institute of Migration comes into operation. The Committee also notes the Government’s indication that in 2019 the National Migration Authority adopted a series of measures, and particularly National Migration Authority Decisions Nos 3-2019 (issuing of Regulations on Guatemalan visas) and 4-2019 (issuing Regulations on residence in Guatemala). The Government adds that Government Decision No. 528-2003 remains in force (issuing the Regulations on work permits for foreign nationals for private sector employers). While noting this information, the Committee notes that section 238 of the Migration Code provides that the general regulations and the other regulations envisaged in the Code shall be adopted during the first year following the establishment of the National Migration Authority. Lastly, the Government indicates in its supplementary information that it is working on an inter-institutional agreement with the Guatemalan Migration Institute called: “Inter-institutional cooperation agreement between the Ministry of Labour and Social Welfare and the Guatemalan Migration Institute to expedite the processing and delivery of immigration documents to Guatemalans enrolled in the Temporary Work Program”. The Committee also notes that the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of their Families expressed concern at the lengthy implementation process of the Code and its secondary legislation (CMW/C/GTM/CO/2, of 2 May 2019, paragraph 12). The Committee requests the Government to continue providing information on the adoption of the regulations envisaged in the Migration Code, and on the progress made in the establishment of the Guatemalan Institute of Migration.

Article 1(c). Agreements concluded on labour migration. Further to its previous request for information on the agreements concluded on labour migration, the Committee takes due note of the detailed information provided by the Government on the cooperation activities undertaken within the framework of the: (1) the Memorandum of Understanding between the Ministers responsible for Labour and Social Welfare of Guatemala, El Salvador and Honduras on migrant workers; (2) the Bilateral Cooperation Agreement on Labour between Mexico and Guatemala; and (3) the Agreement between Guatemala and Belize on a programme for temporary workers in being implemented. The Committee also notes that the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of their Families noted the following agreements: (1) the Central American Free movement Agreement (CA-4) between El Salvador, Honduras, Nicaragua and Guatemala; (2) the Labour Migration Programme with Canada; and (3) the Plan of the Alliance for Prosperity in the Northern Triangle between Guatemala, El Salvador and Honduras (CMW/C/GTM/CO/2, of 2 May 2019, paragraph 46).

Articles 2, 4 and 7. Services to assist migrant workers. In its previous comment, the Committee requested the Government to provide information on the activities of the various institutions responsible for providing assistance to migrant workers under the terms of the Migration Code (the Guatemalan Institute of Migration, the Guatemalan National Council for Assistance to Migrants (CONAMIGUA) and the Care and Protection Council), and on any other measure adopted to give effect to these Articles of the Convention. The Committee notes the Government’s indication, with regard to CONAMIGUA, that: (1) its operations have been limited following the cancellation of the appointment of its Executive Secretary by the Constitutional Court, but that the new Executive Secretary took office on 9 April 2018; (2) measures were taken to pay the wage arrears to the employees of the Institution, and to initiate all the steps necessary for the approval of the budget for 2018, and action was commenced with a view to discharging the functions, mission and vision for which CONAMIGUA was established; (3) four regional premises of CONAMIGUA have been opened (in Huehuetenango, Alta Verapaz and San Marcos); and (4) consultations are being held with municipal authorities and government departments in the departments of Quetzaltenango, Teculután, Zacapa, Quiché and Sacatepéquez, with a view to the conclusion of inter-institutional cooperation agreements. The Committee also notes the detailed information provided by the Government on the assistance services for Guatemalan workers abroad within the context of consular services. While taking due note of this information, the Committee requests the Government to provide information on the assistance services provided by CONAMIGUA (at the national and local levels) and on the activities of other institutions responsible for the provision of services under the terms of the Migration Code (the Guatemalan Institute for Migration and the Care and Protection Council).

Returning workers. In its previous comment, the Committee requested the Government to provide information on the assistance programmes for migrant workers returning to the country. The Committee notes the Government’s indication that the Ministry of Foreign Affairs is collaborating in an inter-sectoral mechanism to promote the public–private inclusion project “Guate te incluye”, the objective of which is to contribute to the integration of workers returning to the labour market through the documentation of the occupational profiles of returnees, and the provision of information and skills training, with a view to facilitating their access to jobs. According to the supplementary information provided by the Government, between 2019 and 2020, 252 returnees were evaluated and certified in soft skills and for work, in coordination with the Association of Guatemalan Returnees, the “Quédate” Program and the National Employment Service; and 231 returnees entered into the labour market. The Government adds that the Ministry of Foreign Affairs provides support for Guatemalan nationals returning from the United States through the provision of services on humanitarian matters, including food, the payment of transport tickets to return to their places of origin and facilities to make international calls. Finally, the Government indicates that the Ministry of Labour and Social Welfare (MTPS) has created a window for returning migrants with the objective of providing guidance for their reintegration into the labour market.

Article 3. Measures to prevent misleading propaganda. In its previous comment, the Committee requested the Government to provide information on the measures adopted to prevent misleading propaganda. The Committee notes the Government’s indication that the Ministry of Foreign Affairs launched a regional campaign, with other government institutions, civil society organizations and embassies, to prevent the deception of migrant workers, under the slogan “Ask, take note and check”, to provide information on the risk of deception in recruitment processes and the related complaint procedures. The Government adds that the Ministry of Foreign Affairs has launched a series of campaigns in coordination with the Ministry of Labour and Social Welfare (including a campaign on how to work in southern Mexico with protection for labour rights, and information activities for Guatemalan workers in Canada). The Committee also notes that section 161(a) of the Migration Code provides that the Care and Protection Council, as an institution of the National Migration Authority, shall be responsible for developing prevention and information campaigns on the risks of migration and the rights of migrants. The Committee requests the Government to continue providing information on the campaigns undertaken by the Ministries of Foreign Affairs and of Labour and Social Welfare with a view to informing migrant workers of their rights within and outside the country, and on any prevention and information campaigns or initiatives undertaken.

Article 6(1)(d). Equal treatment. Legal proceedings. In its previous comments, the Committee requested the Government to provide information on the measures taken to ensure that migrant workers who are legally residing in the country are not treated less favourably than Guatemalan nationals with regard to the rights set out in Article 6 of the Convention. The Committee also requested the Government to provide information on any relevant court decisions, the number and nature of the infringements reported by the labour inspection services and the penalties imposed. The Committee notes, with reference to the relevant laws and regulations, the Government’s indication that section 9 of the Migration Code provides that migrants shall be treated equally and shall not suffer discrimination on grounds of nationality, among other reasons. The Committee also notes that the Code establishes in section 23 minimum social rights for migrant workers (including equitable remuneration, respect for working time, holidays and leave) and in section 37 the rights of migrant workers to have access to the administrative authorities and labour courts of the country and to take action under the respective national laws. With regard to the application of the principle in practice, the Committee notes the Government’s indication that: (1) after consulting the judicial authorities, there is no record of the relevant court rulings; (2) data is provided, disaggregated by sex and nationality, on the number of complaints made by migrant workers to the general labour inspection services (a total of 207 complaints between 1 January 2017 and 20 May 2019); and (3) that the monitoring system for inspections does not currently distinguish between the reasons for which penalties are imposed and the level of the penalties. While noting this information, the Committee observes that the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of their Families expressed concern at the lack of access to justice of migrants (CMW/C/GTM/CO/2, of 2 May 2019, paragraphs 28 and 38). The Committee requests the Government to continue providing information on the complaints made by migrant workers to the general labour inspection services and/or the judicial authorities in relation to the matters covered by the Convention, and on any action taken as a result. The Committee encourages the Government to develop the collection of data regarding the reasons for penalties imposed as well as the levels of penalties, to address the deficit of the monitoring system of inspection in that regard.

Article 3 of Annex I. Regulation of operations of recruitment, introduction and placement in employment. The Committee notes the Government’s indication that the Department of Labour Mobility of the Ministry of Labour and Social Welfare is preparing regulations on the registration, authorization and operation of recruiters and recruitment and placement agencies of Guatemalan workers abroad. The Government indicates that the regulations are in the final stages of being reviewed by the Ministry of Labour and Social Welfare before being referred to the Office of the Attorney-General. The Committee requests the Government to provide information on the adoption of these regulations.

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

Article 1(a) of the Convention. National migration policy. In its previous comment, the Committee requested the Government to provide information on any progress made in the development, establishment and monitoring of migration policy as envisaged in section 116 of the Migration Code. The Committee notes the Government’s indication in its report that a comprehensive public policy on migration has not yet been adopted under the terms of the Migration Code. The Committee observes that the Government has adopted a National Decent Employment Policy 2017–32, which includes a National Programme of Migration for Development. The Committee requests the Government to provide information on the results of the National Programme of Migration for Development. The Committee also requests the Government to provide information on the adoption of a migration policy under the terms of section 116 of the Migration Code.

Statistics on migration movements. Further to its previous request for the provision of statistical data on migration movements, the Committee notes and welcomes the detailed information, disaggregated by sex, provided by the Government on the immigration and authorized emigration of workers. In particular, the Committee notes that the statistics show that over the past two years the majority of foreign nationals authorized to work in Guatemala are nationals of the Republic of Korea, El Salvador, the Bolivarian Republic of Venezuela, Nicaragua, Honduras, Mexico and Colombia. The Committee also notes the figures on the temporary migration of Guatemalan workers with job offers to Mexico (36,427 workers since 2014), United States (five workers since 2014) and Canada (25,404 workers since 2014). Finally, the Committee also notes the data provided indicating that the great majority of these temporary migrant workers are men (95.42 per cent).

Article 1(a) and (b). National laws and regulations on migration. In its previous comment, the Committee requested the Government to provide information on the National Migration Authority and the Guatemalan Institute of Migration, both established under the terms of the Migration Code, and on the effect given in practice to the Code. The Committee notes the Government’s indication that the Migration Code envisages a period of two years for the process of the transition of the General Department of Migration in the Ministry of the Interior to the establishment of the Guatemalan Institute of Migration, and that Government Decision No. 83-2017 was adopted respecting institutional continuity while the Guatemalan Institute of Migration comes into operation. The Committee also notes the Government’s indication that in 2019 the National Migration Authority adopted a series of measures, and particularly National Migration Authority Decisions Nos 3-2019 (issuing of Regulations on Guatemalan visas) and 4-2019 (issuing Regulations on residence in Guatemala). The Government adds that Government Decision No. 528-2003 remains in force (issuing the Regulations on work permits for foreign nationals for private sector employers). While noting this information, the Committee notes that section 238 of the Migration Code provides that the general regulations and the other regulations envisaged in the Code shall be adopted during the first year following the establishment of the National Migration Authority. The Committee also notes that the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of their Families expressed concern at the lengthy implementation process of the Code and its secondary legislation (CMW/C/GTM/CO/2, of 2 May 2019, paragraph 12). The Committee requests the Government to continue providing information on the adoption of the regulations envisaged in the Migration Code, and on the progress made in the establishment of the Guatemalan Institute of Migration.

Article 1(c). Agreements concluded on labour migration. Further to its previous request for information on the agreements concluded on labour migration, the Committee takes due note of the detailed information provided by the Government on the cooperation activities undertaken within the framework of the: (1) the Memorandum of Understanding between the Ministers responsible for Labour and Social Welfare of Guatemala, El Salvador and Honduras on migrant workers; (2) the Bilateral Cooperation Agreement on Labour between Mexico and Guatemala; and (3) the Agreement between Guatemala and Belize on a programme for temporary workers. The Committee also notes that the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of their Families noted the following agreements: (1) the Central American Free movement Agreement (CA-4) between El Salvador, Honduras, Nicaragua and Guatemala; (2) the Labour Migration Programme with Canada; and (3) the Plan of the Alliance for Prosperity in the Northern Triangle between Guatemala, El Salvador and Honduras (CMW/C/GTM/CO/2, of 2 May 2019, paragraph 46).

Articles 2, 4 and 7. Services to assist migrant workers. In its previous comment, the Committee requested the Government to provide information on the activities of the various institutions responsible for providing assistance to migrant workers under the terms of the Migration Code (the Guatemalan Institute of Migration, the Guatemalan National Council for Assistance to Migrants (CONAMIGUA) and the Care and Protection Council), and on any other measure adopted to give effect to these Articles of the Convention. The Committee notes the Government’s indication, with regard to CONAMIGUA, that: (1) its operations have been limited following the cancellation of the appointment of its Executive Secretary by the Constitutional Court, but that the new Executive Secretary took office on 9 April 2018; (2) measures were taken to pay the wage arrears to the employees of the Institution, and to initiate all the steps necessary for the approval of the budget for 2018, and action was commenced with a view to discharging the functions, mission and vision for which CONAMIGUA was established; (3) four regional premises of CONAMIGUA have been opened (in Huehuetenango, Alta Verapaz and San Marcos); and (4) consultations are being held with municipal authorities and government departments in the departments of Quetzaltenango, Teculután, Zacapa, Quiché and Sacatepéquez, with a view to the conclusion of inter-institutional cooperation agreements. The Committee also notes the detailed information provided by the Government on the assistance services for Guatemalan workers abroad within the context of consular services. While taking due note of this information, the Committee requests the Government to provide information on the assistance services provided by CONAMIGUA (at the national and local levels) and on the activities of other institutions responsible for the provision of services under the terms of the Migration Code (the Guatemalan Institute for Migration and the Care and Protection Council).

Returning workers. In its previous comment, the Committee requested the Government to provide information on the assistance programmes for migrant workers returning to the country. The Committee notes the Government’s indication that the Ministry of Foreign Affairs is collaborating in an inter-sectoral mechanism to promote the public–private inclusion project “Guate te incluye”, the objective of which is to contribute to the integration of workers returning to the labour market through the documentation of the occupational profiles of returnees, and the provision of information and skills training, with a view to facilitating their access to jobs. The Government adds that the Ministry of Foreign Affairs provides support for Guatemalan nationals returning from the United States through the provision of services on humanitarian matters, including food, the payment of transport tickets to return to their places of origin and facilities to make international calls. Finally, the Government indicates that the Ministry of Labour and Social Welfare (MTPS) has created a window for returning migrants with the objective of providing guidance for their reintegration into the labour market.

Article 3. Measures to prevent misleading propaganda. In its previous comment, the Committee requested the Government to provide information on the measures adopted to prevent misleading propaganda. The Committee notes the Government’s indication that the Ministry of Foreign Affairs launched a regional campaign, with other government institutions, civil society organizations and embassies, to prevent the deception of migrant workers, under the slogan “Ask, take note and check”, to provide information on the risk of deception in recruitment processes and the related complaint procedures. The Government adds that the Ministry of Foreign Affairs has launched a series of campaigns in coordination with the Ministry of Labour and Social Welfare (including a campaign on how to work in southern Mexico with protection for labour rights, and information activities for Guatemalan workers in Canada). The Committee also notes that section 161(a) of the Migration Code provides that the Care and Protection Council, as an institution of the National Migration Authority, shall be responsible for developing prevention and information campaigns on the risks of migration and the rights of migrants. The Committee requests the Government to continue providing information on the campaigns undertaken by the Ministries of Foreign Affairs and of Labour and Social Welfare with a view to informing migrant workers of their rights within and outside the country, and on any prevention and information campaigns or initiatives undertaken.

Article 6(1)(d). Equal treatment. Legal proceedings. In its previous comments, the Committee requested the Government to provide information on the measures taken to ensure that migrant workers who are legally residing in the country are not treated less favourably than Guatemalan nationals with regard to the rights set out in Article 6 of the Convention. The Committee also requested the Government to provide information on any relevant court decisions, the number and nature of the infringements reported by the labour inspection services and the penalties imposed. The Committee notes, with reference to the relevant laws and regulations, the Government’s indication that section 9 of the Migration Code provides that migrants shall be treated equally and shall not suffer discrimination on grounds of nationality, among other reasons. The Committee also notes that the Code establishes in section 23 minimum social rights for migrant workers (including equitable remuneration, respect for working time, holidays and leave) and in section 37 the rights of migrant workers to have access to the administrative authorities and labour courts of the country and to take action under the respective national laws. With regard to the application of the principle in practice, the Committee notes the Government’s indication that: (1) after consulting the judicial authorities, there is no record of the relevant court rulings; (2) data is provided, disaggregated by sex and nationality, on the number of complaints made by migrant workers to the general labour inspection services (a total of 207 complaints between 1 January 2017 and 20 May 2019); and (3) that the monitoring system for inspections does not currently distinguish between the reasons for which penalties are imposed and the level of the penalties. While noting this information, the Committee observes that the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of their Families expressed concern at the lack of access to justice of migrants (CMW/C/GTM/CO/2, of 2 May 2019, paragraphs 28 and 38). The Committee requests the Government to continue providing information on the complaints made by migrant workers to the general labour inspection services and/or the judicial authorities in relation to the matters covered by the Convention, and on any action taken as a result.

Article 3 of Annex I. Regulation of operations of recruitment, introduction and placement in employment. The Committee notes the Government’s indication that the Department of Labour Mobility of the Ministry of Labour and Social Welfare is preparing regulations on the registration, authorization and operation of recruiters and recruitment and placement agencies of Guatemalan workers abroad. The Government indicates that the regulations are in the final stages of being reviewed by the Ministry of Labour and Social Welfare before being referred to the Office of the Attorney-General. The Committee requests the Government to provide information on the adoption of these regulations.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, received on 30 August 2017.

Article 1(a) of the Convention. Information on national policies and laws. In its previous comments, the Committee requested the Government to continue to provide information on the migration policies that had been adopted, and particularly on the measures taken to ensure their implementation in practice and their impact on the application of the provisions of the Convention. It also requested the Government to continue to provide statistical information, disaggregated by sex, sector of activity and country of origin, on the number of migrant workers resident in Guatemala, and any such information available with respect to Guatemalan workers resident abroad. The Committee notes that, in its report, the Government states that the Migration Act (Decree No. 95-98 of 17 December 1998) was replaced by the Migration Code, adopted through Decree No. 44-2016 of 20 September 2016. The Committee notes that, under the Migration Code, the State guarantees that all individuals present on the national territory have equal access to public services related to security, education, labour, housing, and all other essential services (section 2). Chapter 3 of the Migration Code also establishes the rights of migrant workers and their families. The Committee notes, in particular, that according to section 22(2) of the Migration Code, “provisions that imply that the rights recognized in domestic and international legislation and in any provision of a public or private nature are waived, diminished, prejudiced or limited shall be null and void and shall not apply to migrant workers”. The Committee also notes that the Migration Code provides for the establishment of: (i) the Guatemalan Institute of Migration, which has exclusive competence to implement migration policy (section 120), and whose multiple functions include the protection of the rights of migrants and the coordination of specific action to ensure the care, assistance and protection of migrants (section 122); and (ii) the National Migration Authority, which is responsible for developing, establishing and monitoring migration policy, and for safe migration (section 116).

The Committee notes the statistical data provided by the Government on the number of foreign residents in the country and on the number of Guatemalan temporary residents in Mexico and Canada. The Committee particularly notes that, in 2016, a total of 1,853 work permits were issued, of which 553 were for women. The nationalities of migrants included Salvadoran, Korean, Colombian, Mexican, Venezuelan and Nicaraguan. The Committee also notes the report on the human rights situation in Guatemala, which was drafted in 2017 by the Inter American Commission on Human Rights (OEA/Ser.L/V/II/Doc.208/17, 31 December 2017), and according to which one in ten Guatemalans live outside their country and the majority of Guatemalan migrants (97.4 per cent) move to the United States. The report indicates that the number of people who have been forced to leave Guatemala owing to various forms of violence has increased dramatically in recent years. The Committee requests the Government to provide information on the application in practice of the Migration Code and its impact on the application of the provisions of the Convention, including information on the measures taken by the Guatemalan Institute of Migration and the National Migration Authority, and on any progress made in the development, establishment and monitoring of migration policy provided for in section 116 of the Migration Code. The Committee also requests the Government to continue to provide statistical data, disaggregated by sex, sector of activity and country of origin, on the number of migrant workers residing in Guatemala, and any such information available on the number of Guatemalan workers resident abroad.

Article 1(c). Information on general agreements and special arrangements. In its previous comments, the Committee requested the Government to provide information on specific agreements concluded with other States, with a view to providing protection for migrant workers, and on the number of workers covered by such agreements. It also requested the Government to indicate whether the Memorandum of Understanding with the Government of Mexico, to which the Government had referred previously, had been signed. The Committee notes that the Government refers to the Declaration by the Labour Ministers of Central America and the Dominican Republic of June 2013, which established a regional action plan with ILO technical assistance, in order to, inter alia, promote greater collaboration at the regional level to integrate the management of labour migration into employment policies, with a view to regulating migration and protecting migrant workers. The Committee also notes that the Government provides information on: (i) the Memorandum of Understanding on labour cooperation between Mexico, El Salvador, Guatemala and Honduras; (ii) the Agreement on Bilateral Labour Cooperation between Mexico and Guatemala, which expired in 2016; (iii) and the Agreement between Guatemala and Belize on a programme for temporary workers. The Committee requests the Government to continue to provide information on the general agreements and special arrangements adopted, as well as copies of such agreements.

Articles 2, 4 and 7. Services to assist migrant workers. In its previous comments, the Committee requested the Government to provide detailed information on the functioning of the Guatemalan National Council for Assistance to Migrants (CONAMIGUA) and the Working Subcommittee on Labour Mobility, and on the specific measures adopted by these bodies with a view to the application of Article 2 of the Convention. It also requested the Government to provide information on the activities for the protection of Guatemalan migrant workers abroad carried out by the Consular Service of Guatemala. The Committee notes that the Government provides information on the functioning of CONAMIGUA. It notes in particular that CONAMIGUA runs a programme offering free legal advice to Guatemalans abroad, their families in Guatemala, Guatemalan deportees and migrants on the national territory. CONAMIGUA also carries out various communication activities on the rights of the migrant population and the risks of undocumented migration, organizes training programmes in collaboration with the Technical Institute for Training and Productivity (INTECAP), which are aimed at Guatemalan migrants and their families, and migrants on the national territory, and facilitates the social services provided by various competent bodies (including medical consultations), among other activities. Regarding the Working Subcommittee on Labour Mobility, the Committee notes that the Government provides information on, inter alia, the Labour Mobility Initiative (INILAB) created in 2016, under which coordination activities have been carried out to promote information campaigns on fraud prevention and migrant recruitment processes. The Government also indicates that the Subcommittee provides free services in relation to job placements and vocational guidance and training. The Committee also notes that the Government provides extensive information on the activities carried out as part of consular duties, which include: information and awareness-raising visits on labour standards in the destination country; consular protection visits; on-the-spot support at court hearings or appointments with lawyers or doctors; and collaboration with local authorities. Furthermore, the Committee notes that, in their observations, the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala indicate that CONAMIGUA is not functioning at present and that the services provided to Guatemalan migrants have been suspended. Recalling that, under the Migration Code, the Guatemalan Institute of Migration is responsible for, inter alia, coordinating specific actions for the care, assistance and protection of migrants, the Committee requests the Government to provide information on any measures taken with regard to this Institute. It also requests the Government to continue to provide information on any other measures adopted to give effect to Articles 2, 4 and 7 of the Convention. The Committee requests the Government to send its comments on the observations made by the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala.

Return. The Committee notes that the report on the human rights situation in Guatemala, drafted in 2017 by the Inter-American Commission on Human Rights (OEA/Ser.L/V/II/Doc.208/17), highlights the forced return of migrants, particularly following the tightening of the migration policies in Mexico and the United States in recent years, and points out that this situation poses significant challenges for ensuring the reintegration of these people into society and the effective enjoyment of their rights in the country. The Committee requests the Government to provide information on the assistance programmes for migrant workers returning to the country and on any obstacles encountered in this regard.

Article 3. Measures to prevent misleading propaganda. In its previous comments, the Committee requested the Government to continue to report on the measures adopted with a view to providing precise information to workers who decide to leave and work abroad. The Committee notes that the Government provides information on the measures taken regarding fraud prevention and information on labour rights, which include campaigns to prevent fraud against migrants, informative radio programmes, training workshops for public officials working in citizen service centres, and the development of a manual to raise awareness of the rights of temporary workers with a view to combating abuse in recruitment. The Committee requests the Government to continue to provide information on the measures adopted to prevent misleading propaganda, including information on the steps taken to penalize conduct that is misleading and harmful to migrants for employment.

Article 6. Equal treatment. In its previous comments, the Committee referred to the fact that section 13 of the Labour Code, read in conjunction with the Regulations governing authorization of the work of foreign nationals for private sector employers (Government Agreement No. 528-2003), prohibits employers from hiring less than 90 per cent of Guatemalan workers (only 10 per cent may be foreigners) and from paying Guatemalan workers less than 85 per cent of the total wage bill in the respective enterprises (15 per cent may be paid to foreign workers). The Committee also noted that, according to the statistical information provided by the Government, seven out of ten foreign nationals were recruited as managers, directors, administrators, supervisors and general managers of enterprises to whom, under section 13 of the Labour Code, this restriction does not apply. The Committee therefore requested the Government to provide information on: (i) the application of these provisions in practice, particularly their impact on the number of foreigners hired and the remuneration that they receive, including any complaints of discrimination; (ii) the application in practice of its policy and legislation concerning equality of treatment for nationals and migrant workers, particularly in relation to the matters covered by Article 6(1)(a)–(d) of the Convention; and (iii) the measures taken by the labour inspectorate and the judicial authorities in the event of non-compliance with the provisions of national law that give effect to Article 6. The Committee notes the Government’s indications on the manner in which section 13 of the Labour Code is applied in practice, including the requirement for the employer concerned to certify the total number of workers of the entity, the numbers of nationals and foreign citizens and the corresponding percentages, and the total wages paid, which must be accompanied by a notarial deed that proves the authenticity of the above particulars. The Committee also notes the Government’s indications regarding the total number of foreign nationals who have a permit managed by their enterprise, in other words, employees hired as managers, directors, administrators, supervisors and general managers of enterprises, 81 per cent of whom have a university education, 17 per cent have a diversified education, and 2 per cent whose education is not specified. The Government also indicates that the Ministry of Labour and Social Welfare, through the Department for Permits for Foreign Nationals, ensures that both foreign and Guatemalan workers receive equal treatment with respect to their rights. This involves, inter alia, establishing whether the workers have been included on the payroll as indicated in the required certification, which would entitle foreign workers to benefits, such as social security and statutory allowances. The Committee also notes that the Government provides statistical information on complaints addressed by the labour inspectorate, and indicates that there are no court cases involving non-compliance with domestic legislation that relate to Article 6 of the Convention. Noting that, under the Migration Code, the Guatemalan Institute of Migration is responsible for, inter alia, protecting the rights of migrants, the Committee requests the Government to provide information on any measures taken by this Institute with a view to ensuring that migrant workers who are legally residing in the country are not treated less favourably than Guatemalan nationals with regard to the rights provided for in Article 6 of the Convention. It also requests the Government to continue to provide information on any relevant court decisions, and on the number and nature of infringements recorded by the labour inspectorate and the penalties imposed.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the Government’s reference to the formulation of the General Foreign Policy Framework of Guatemala, which constitutes a response to the needs of the Guatemalan community abroad and seeks to establish a comprehensive migration policy that complies fully with human rights. Within this framework the Government will seek new opportunities for workers abroad and in new productive sectors. Accordingly, the purpose of the Working Subcommittee on Labour Mobility is to facilitate and complement efforts in the public sector, the private sector and civil society to increase possibilities of formal employment and improve the conditions of work of Guatemalans interested in working abroad. The Committee also notes the statistics supplied by the Government which indicate that in the period 2009–11 2,245 work permits were issued to foreigners (1,380 (61.5 per cent) for men and 561 (25 per cent) for women, with 13 per cent unspecified in the database). More than 60 per cent of migrant workers originate from Latin America (330 from Colombia, 107 from Peru and 241 from El Salvador). The immigration rate for persons of Asian origin was also significant (17.7 per cent). According to the statistics, migrant workers are mainly found in industry (35.2 per cent), commerce (14.3 per cent), and transport, warehousing and communications (11.7 per cent). Moreover, the statistics show that most foreign workers are hired as managerial staff and company managers (seven out of ten permits issued) or as professionals (two out of ten permits issued). As regards Guatemalan migrants for employment, the Committee notes the growth in migration to Canada. In 2003 a total of 215 workers emigrated to Canada, while 3,858 emigrated in the first few months of 2012. As regards emigration to Mexico, the Government indicates that a total of 35,000 Guatemalan men and their family members emigrate each year to take up temporary work on coffee, sugar cane and papaya plantations or in cleaning or construction services. The Committee requests the Government to continue to provide information on migration policies which have been adopted, including on measures taken to ensure their implementation in practice and their impact on the application of the provisions of the Convention. The Committee also requests the Government to continue to provide statistics, disaggregated by sex, sector of activity and country of origin, on the number of migrant workers resident in Guatemala, and any such information available with respect to Guatemalan workers resident abroad.

Information on general agreements and special arrangements. The Committee notes that as part of the General Foreign Policy Framework, the Government will reinforce channels of communication and cooperation with the competent authorities of countries of destination and transit for Guatemalan workers. Accordingly, the Committee notes the collaboration between Guatemalan consulates and the Canadian and Mexican authorities to ensure respect for the rights of Guatemalan workers. The Government also plans to increase such cooperation with Canada, particularly with regard to the recruitment and selection process in the context of programmes for temporary migration and also with entities in the United States. The Committee further notes the negotiations between Guatemala and Mexico with regard to issuing a migration form for cross-border workers. The Committee requests the Government to provide information on specific agreements concluded with other States, with a view to providing protection for migrant workers, and the numbers of workers covered by such agreements. The Government is also requested to indicate whether the Memorandum of Understanding with the Government of Mexico, to which the Government has referred to previously, has been signed and, if so, to provide a copy of it.

Articles 2 and 7. Services to assist migrant workers. The Committee notes with interest the establishment, by means of Decree No. 46-2007, of the Guatemalan National Council for Assistance to Migrants (CONAMIGUA), which coordinates, defines, supervises and inspects action and activities of state bodies aimed at providing protection, care and assistance for Guatemalan migrants and their families in Guatemala and also for immigrants located on the national territory. As part of the General Foreign Policy Framework, the Government also plans to adopt various measures aimed at assisting Guatemalans abroad, such as strengthening and expanding the Consular Service of Guatemala, including through the setting up of mobile consulates and a telephone helpline; supporting the reintegration of Guatemalan migrants who have returned to the country; and promoting recognition of studies undertaken abroad for the benefit of Guatemalan returnees and resident foreigners. The Working Subcommittee on Labour Mobility set up in October 2011 has drawn up a work plan through ten specialist groups in order to cater for workers in Canada and Mexico, for repatriated Guatemalan citizens and for foreigners in Guatemala. It is also working on the standardization of procedures for the recruitment of Guatemalans abroad and on the transparency of processes for the recruitment, transportation and repatriation of Guatemalans. It has also published information brochures. The Government also indicates that the National Employment Service is providing free services to all workers in general without discrimination. The Committee requests the Government to provide detailed information on the operation of CONAMIGUA and the Working Subcommittee on Labour Mobility and the specific measures adopted by these bodies with a view to the application of Article 2 of the Convention. The Committee also requests the Government to provide information on the activities for the protection of Guatemalan migrant workers abroad carried out by the Consular Service of Guatemala.

Article 3. Misleading propaganda. The Committee notes that in the context of the General Foreign Policy Framework it is planned to continue with the preventive information campaign on the risks of unauthorized migration and of involvement in travel for illicit purposes such as drug running, money laundering and the use of false documents (passports, visas), and also on the dangers of becoming victims of illicit trafficking of persons for labour and sexual exploitation. While emphasizing the importance of adopting specific measures to prevent migrants from being exposed to mistreatment, the Committee requests the Government to continue to provide information on the steps taken to provide migrants for employment with accurate information.

Article 4. Measures taken to facilitate the departure, journey and reception of migrants. The Committee notes that as part of the General Foreign Policy Framework, consular assistance to Guatemalans, particularly procedures for obtaining documentation, will be intensified. The Government also indicates that the Ministry of External Relations will provide support through consulates for the repatriation of workers and advise them on their safe return to their country of origin. The Committee requests the Government to continue to provide information on the measures taken to facilitate the departure, journey and reception of Guatemalan migrants for employment, including in the context of temporary migration programmes. The Government is also requested to state whether similar measures exist for foreign workers in Guatemala.

Article 6. Equal treatment. In its previous comments the Committee referred to the fact that section 13 of the Labour Code, read in conjunction with the Regulations governing authorization of the work of foreign nationals for private sector employers (Government Agreement No. 528-2003), prohibits employers from hiring less than 90 per cent of Guatemalan workers (only 10 per cent may be foreigners) and from paying Guatemalan workers less than 85 per cent of the total wage bill in the respective enterprises (15 per cent may be paid to foreign workers). While noting that, according to the statistical information mentioned above, seven out of ten foreign nationals are recruited as managers, directors, administrators, supervisors and general managers of enterprises to which, under section 13 of the Labour Code, this restriction does not apply, the Committee requests the Government to provide information on the application of these provisions in practice, particularly their impact on the number of foreigners hired and the remuneration that they receive, including any complaints of discrimination. The Committee also requests the Government to provide information on the application in practice of its policy and legislation concerning equality of treatment for nationals and migrant workers, particularly in relation to the matters covered by Article 6(1)(a)–(d) of the Convention. The Government is also requested to continue to provide information on the measures taken by the labour inspectorate and the judicial authorities in the event of non-compliance with the provisions of national law that give effect to Article 6.

Article 9. Remittances. The Committee notes with interest that section 1 of the Act concerning free currency exchange (Decree No. 94-2000) establishes the freedom to send remittances and make currency transfers. The Government indicates that the legislation does not prescribe any limits regarding the transfer of migrants’ earnings and savings.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the extensive information provided by the Government in its report, as well as the attached documentation. In particular, it notes the developments in migration policy and with respect to the policy of consular protection and assistance for Guatemalan migrant workers abroad. It also notes with interest the National Policy for Social Development and the Population, which includes fundamental human rights principles and includes amongst its general objectives practical strategies and action which take into account national and international migratory trends from the perspective of development and combating poverty. The Committee requests the Government to provide further information on the measures adopted to give effect in practice to the above policies and the results achieved as they relate to the provisions of the Convention. Please also provide information on any practical difficulties encountered in the application of the Convention and indicate whether the ordinary courts or other bodies have issued rulings on questions of principle relating to the application of the Convention. If so, please provide copies of such rulings.

2. Information concerning general agreements and special arrangements. The Committee notes that communications are ongoing relating to understanding and cooperation between the Government of Guatemala and that of the United States of Mexico with a view to coordinating migration controls, the participation of the consular offices of the two countries and the issuing of temporary work and local visitors’ visas. The Committee also notes that a Memorandum of Understanding on Guatemalan migrant workers in Mexico is being prepared, which it hopes will take into account issues relating to gender equality and the feminization of migratory trends, and will be formulated in the light of the Convention, Annex II to the Convention and the Migration for Employment Recommendation (Revised), 1949 (No. 86). The Committee would be grateful if the Government would provide a copy of the final text of the Memorandum of Understanding as well as information on its application in practice, together with data on the number of men and women migrants covered when such information is available.

3. Articles 2 and 7. Services and assistance to migrant workers. The Committee notes with interest the establishment of measures to provide services to migrant workers and to protect their interests. The Committee notes in particular: the Migrant Services Office which ensures compliance with the rights of migrants and the conditions of their entry into the country; the Office of the Ombud for the Uprooted and Migrant Population which is the mechanism to inspect government institutions and prevent any abuse of authority through failure to comply with the obligations deriving from an individual employment contract; the National Programme for the Migrant Population of the Ministry of Public Health and Social Assistance and that of the Guatemalan Social Security Institute on the health of the migrant population and their family members. The Committee requests the Government to provide detailed information on the activities undertaken by the Migrant Services Office, the Office of the Ombud for the Uprooted and Migrant Population, and the programmes on the health of the migrant population and family members, with the results achieved in promoting the application of the Convention. The Committee further requests the Government to continue providing information on the various programmes and policies to promote and protect the rights of migrant workers in Guatemala and of Guatemalan migrant workers abroad.

4. Article 6. Equality of treatment. The Committee notes section 13 of the Labour Code (Decree No. 18-2001), in conjunction with the Regulations respecting the authorization to work of foreign nationals for private sector employers (Government resolution No. 528-2003), which restrict foreign workers to 10 per cent and to 15 per cent in total of the remuneration paid to the personnel. Noting that the application of a restriction on the remuneration of foreign workers may result in discrimination in practice against them in relation to national workers, the Committee wishes to recall that Article 6(a) of the Convention implicitly requires the elimination of discriminatory legal provisions and practices in the areas addressed by the Convention. The Committee asks the Government to provide information on the effect given in practice to section 13 of the Labour Code, including whether complaints have been received of discrimination in relation to the remuneration of migrant workers. The Committee would also be grateful if the Government would provide fuller information on the application in practice of its policy and legislation concerning equality of treatment between nationals and migrant men and women workers, including information on any activity undertaken, and on any complaint to the judicial, administrative or any other appropriate authorities, such as the Migrant Services Office and the Office of the Ombud for the Uprooted and Migrant Population.

5. Annex I. Private employment agencies. The Committee notes that, according to the Government in its report, private employment agencies do not operate in Guatemala and that, furthermore, there are no regulations on recruitment, entry and hiring operations. Given the wide scope for the abuse of prospective migrants by intermediaries during the recruitment procedure, it is recommended that these operations are subject to the approval of the competent authority in the territory (see General Survey on migrant workers, 1999, paragraph 172). Noting that the role of such agencies in the process of international migration is constantly increasing, the Committee requests the Government to keep it informed of any development relating to the emergence of private employment agencies. It also requests the Government to indicate whether it envisages adopting legislative measures to regulate their activities or, where appropriate, to provide information on the measures adopted to promote self-regulation with a view to protecting migrant workers against possible abuses.

6. The Committee notes the statistics provided by the Government but would be grateful if the Government would provide in its next report statistical data disaggregated by sex, sector of activity and origin on the number of migrant workers resident in Guatemala, as well as the same information on Guatemalan workers resident abroad.

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

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

1. With reference to its previous direct request, the Committee requests the Government to indicate whether bilateral migration agreements have been concluded with Mexico and other countries.

2. In its General Survey of 1999 on migrant workers the Committee observed that since the adoption of the Convention the extent, direction and nature of international migration has undergone significant changes (see paragraphs 5-17 of the General Survey). The Committee therefore asks the Government to provide copies of any new laws or regulations that have been adopted, together with up-to-date information on its emigration and immigration policy. In responding, please refer to the questions in the report form on the Convention. The Committee would also be grateful if the Government would indicate the manner in which current trends in migration flows have affected the content and application of its policy and national legislation regarding emigration and immigration.

3. In view of the growing role of private agencies in the international migration process, the Government is asked to indicate whether this trend has had any effect on the application of Annexes I and II of the Convention. If so, the Committee would be grateful if the Government would inform it of the measures adopted or envisaged to regulate the activities of private agencies, with a view to protecting migrant workers against any abuse, and the penalties for offences, particularly with regard to misleading propaganda.

4. The Committee requests the Government to provide information on the practical effect given to its policy of equal treatment between national workers and migrant workers in respect of the items listed in paragraphs (a), (b), (c) and (d) of Article 6 of the Convention. Recalling that under paragraph 1 of this Article, any State which has ratified the Convention is bound to afford migrants, without discrimination as to nationality, religion or sex, treatment which is no less favourable than that afforded to its nationals in respect of the items listed in paragraphs (a) to (d) of the above Article, the Committee would be grateful if the Government would indicate the measures adopted or envisaged to ensure that women migrant workers are afforded the same treatment as male workers, foreign or otherwise, in respect of working and living conditions, social security, work-related taxes and access to the legal system, given the growth in the proportion of women in labour migration (see paragraphs 20-23 and 658 of the General Survey).

5. The Committee again asks the Government to provide statistical information on the number of Guatemalans working abroad and their countries of emigration, and on the countries of origin of foreigners working in Guatemala.

6. Lastly, the Government is asked to communicate the results of the relevant activities of the labour inspection services. Please also give an account of any practical difficulties encountered in applying the Convention, indicating whether the courts of law or any other tribunals have ruled on issues of principle concerning the application of the Convention. If so, please provide the texts of their decisions.

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

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

Article 4 of the Convention (in conjunction with Articles 6 and 10 and point V of the report form). The Committee notes that at the IVth Bilateral Meeting between Guatemala and Mexico the Government stressed, in the context of the Committee on Migration Questions, the need for agreements or decisions concerning Guatemalan agricultural migrant workers in Mexico in order to ensure protection of their employment rights.

The Committee asks the Government to provide information on any developments in this area. It also asks the Government to provide information on the number and whereabouts of Guatemalan nationals working abroad, and on the countries of origin of foreigners working in Guatemala, together with the relevant results of the labour inspectorate's activities. Furthermore, the Committee requests the Government to state any practical difficulties encountered in implementing the Convention.