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

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

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.