Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 97) sur les travailleurs migrants (révisée), 1949 - France (Ratification: 1954)

The Committee recalls the observations of the General Confederation of Labour (CGT), dated 30 August 2011, and the Government’s reply thereto received 20 December 2011. It also notes the Government’s reports received 5 December 2011 and 8 August 2012, and the observations of the CGT, dated 31 August 2012, which were sent to the Government for its comments and in which the CGT restates its concerns with respect to Articles 3, 6 and 7 of the Convention.

Article 3 of the Convention. Misleading propaganda regarding immigration and migrant workers. The Committee recalls that under the terms of Article 3, any State for which the Convention is in force undertakes to take all appropriate steps against misleading propaganda relating to emigration and immigration. Such measures should also aim to address stereotypes of migrant workers such as being more susceptible to crime, violence and diseases or regarding their educational and employment abilities (General Survey on migrant workers, 1999, paragraph 217). The Committee notes that the CGT refers to the existing prejudices and stigmatization of the migrant population in France, including discriminatory stereotypes regarding people belonging to the Roma community, and highlights the need for greater efforts to address such prejudices and the dissemination of false information regarding immigrant workers. In this context, the CGT draws particular attention to government policies regarding the dismantling of Roma camps and the expulsion of Roma people, in particular those originating from Bulgaria and Romania, which in its view fail to meet the Government’s obligations under the Convention. The Committee notes the Government’s general reply that the measures aimed at addressing misleading propaganda include legislative and practical measures to combat racism and xenophobia and measures against trafficking of women. Regarding the expulsion of Roma people, the Government details the measures under the relevant legislation relating to the conditions under which nationals from the European Union (EU) may reside in France or may be removed (section L.121-1 of the Code of Entry and Stay of Foreigners and the Right to Asylum (CESEDA)) and the accompanying measures to assist voluntary returnees, mostly nationals from Romania, to reintegrate in their country of origin. The Committee wishes to draw the Government’s attention to its comments on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), noting that the dismantling of the Roma camps is continuing without alternative solutions being sought for housing, thereby reinforcing the marginalization, stigmatization and prejudices of which members of the Roma community are already victims, and creating obstacles to their social integration. The Committee therefore requests the Government to provide full information on the measures taken, in cooperation with the social partners and other relevant stakeholders where appropriate, to prevent and combat prejudices regarding immigration and stigmatization and stereotyping of migrant workers, including the Roma population, in an effective manner, and to provide detailed information on the results achieved.

Article 6. Equality of treatment. The Committee previously noted the developments in relation to France’s immigration law and policy, in particular Act No. 2006-911 of 2006 on immigration and integration and Act No. 2007-1631 of 2007 concerning immigration control, integration and asylum, the new measures taken to facilitate the reception and integration of certain categories of migrants for employment, the measures to improve the housing conditions of the migrant population, and the bilateral agreements and arrangements regarding youth mobility and organizing regular migration and promoting co-development and cooperation. At the same time, the Committee observed that major problems appeared to exist with respect to the integration of migrant workers, including negative perceptions of the immigrant population, widespread discrimination and poor housing conditions. The Committee notes that the CGT raises concerns at the increased stringency of the legislative and normative framework concerning immigration and migrant workers, and its main focus on highly qualified occupations whereas migrant workers already in the territory are primarily employed in low-wage sectors with difficult working conditions (notably, cleaning, textile, restaurant, security and construction). According to the CGT, the measures tightening the rules on the delivery and renewal of residence permits and reducing regular immigration opportunities also encourage irregular migration and drive migrant workers and their families into abusive situations.

The Committee notes the Government’s reply that new policy orientations regarding labour migration have been defined in order to take into account the impact of the economic crisis on the labour market, and to adopt a qualitative and selective approach giving priority to the integration of jobseekers already in the labour market regardless of nationality. The Committee notes the policies to attract highly skilled foreign workers, including Act No. 2011-672 of 16 June 2011 concerning immigration, integration and nationality introducing the “European Union (EU) Blue Card” for highly qualified nationals from countries outside the EU (“third country nationals”). The new legislation also simplifies the procedures regarding the removal of foreigners and amends several provisions concerning the entry and residence of foreigners. According to the Government, the objective of the approach is to ensure the full application of the rules regarding work permits while at the same time ensuring equality of treatment regarding conditions of work and protecting workers from being exploited. The Government states that foreign workers and members of their families lawfully residing in France enjoy equality of treatment with nationals with respect to conditions of work, remuneration, trade union rights and social protection. The Government also refers to the Charter for Diversity in Enterprises, launched in 2004 with the support of the social partners, which the Committee addressed in the context of Convention No. 111. Regarding the situation of Roma of foreign origin, the Government indicates that the Roma are considered as nationals of the country of which they have the nationality and that the transitional arrangements requiring nationals from Bulgaria and Romania – from where most of the Roma population living in France originate – to have a work permit, apply until 2014. The Committee notes that pursuant to the Decree of 1 October 2012, the list of occupations for which Bulgarian and Romanian nationals are eligible to apply has been enlarged from 150 to 291 occupations. While taking due note of the Government’s statement that the reception and integration of migrant workers, in particular at the initial stage of immigration, is a priority in its immigration policy and of the importance attached to the principle of equality of treatment between migrant workers lawfully in the country and nationals, the Committee recalls that the provisions of Article 6 of the Convention not only envisage equal treatment in law, but also in practice. Noting the effect of stereotypes and prejudices regarding the immigrant population on the effective enjoyment in practice of equality of treatment without discrimination as to race, sex, religion and nationality in respect of the matters referred to in Article 6(1)(a) to (d) of the Convention, the Committee also draws the Government’s attention to its comments on Convention No. 111. The Committee requests the Government to indicate in detail the relevant legal provisions applying no less favourable treatment to migrant workers than that which applies to nationals, with respect to the matters enumerated in Article 6(1)(a) to (d) of the Convention, indicating any differences that may exist between the various categories of immigrant workers. The Government is also requested to provide information on the measures taken to ensure that the principle of equal treatment regarding these matters is applied effectively in practice, including specific measures regarding women migrants. Please include information on any complaints brought by migrant workers to the competent authorities, including the Rights Ombud and the courts or any other competent body to ensure the application of the national legislation relevant to the Convention. Furthermore, the Committee encourages the Government to assess the impact of its migration and integration policy on immigrant workers and their families, distinguishing between the different types of permits authorizing employment, with regard to Articles 3 and 6 of the Convention, and asks the Government to provide information in this regard.

Article 6(1)(a)(iii) and (d). Accommodation and legal proceedings. The Committee notes with interest the decision of the Supreme Administrative Court of 11 April 2012 (Conseil d’Etat Ass 11 April 2012, GISTI et FAPIL, No. 322326) repealing section 1 of Decree No. 2008-908 of 8 September 2008 inserting section L300-2 in the Code of Construction and Housing which imposes the condition on certain categories of foreigners that they should have resided for an uninterrupted period of two years in France to benefit from the enforceable right to decent housing. Considering that the provisions of Article 6(1)(a)(iii) and (d) of the Convention could be directly invoked by individuals, the Supreme Administrative Court ruled that the Decree was not in conformity with the Convention in submitting the enforceable right to housing of certain migrant workers to a condition of two years of uninterrupted residence in France, a condition which is not applied to nationals; and, by excluding from its scope of application certain residence permits, such as those delivered to persons who could be migrants for employment within the meaning of Article 11(1) of the Convention, such as temporary workers and employees on assignment. The Court also considered that the Decree ignored the equality principle by excluding these residence permit holders from the enforceable right to housing. The Committee further notes the Government’s statement that the housing policy, which addresses all population groups regardless of nationality, concerns a significant number of foreigners due to overrepresentation of non-nationals among the population facing difficulties in gaining access to housing. Recalling the problems relating to housing conditions of the immigrant population previously noted by the Committee, and the Government’s indication regarding the difficulty in proving that discrimination with respect to housing has occurred, the Committee requests the Government to provide detailed information on the various measures taken or envisaged to improve the housing conditions of migrant workers so as to ensure that in practice, migrant workers are not treated less favourably than nationals with regard to access to accommodation, and to provide information on the results achieved. Please also include information on any measures taken to address the difficulties encountered in proving that discrimination with respect to housing has occurred and on the results achieved.

Articles 2 and 7(2). Free services. The Committee notes the concerns expressed by the CGT at the high fees for migrant workers due to the medical examination required upon entry into France and the fees charged by the National Agency for Foreigners and Integration (OFII) to foreign workers for the delivery or renewal of the residence title authorizing employment. The Committee notes the Government’s reply that administrative costs relating to the recruitment, introduction and placement of foreign workers and the costs for the medical examination are charged to the employer, and that the only costs charged to the migrant worker are the taxes due to OFII for the issuing or the renewal of the residence permit authorizing employment. The Committee notes Circular No. NOR IOCL1201043C of 12 January 2012 fixing the taxes required from the employer for the recruitment of a foreign worker, and from the foreign worker for the delivery or renewal of their residence permit authorizing employment. Furthermore, the Committee notes that OFII is the responsible public service for the reception of newly arriving foreigners with a long-term residence visa authorizing employment as a wage earner, and participates in the integration process of these foreigners. It is also the only “one-stop shop” for the introduction of young professionals, newly arriving “employees on assignment” and foreigners with temporary residence permits for “competencies and talents”. With regard to temporary residence permits for wage earners and temporary workers, the OFII assists the enterprise with the introduction procedure, after the contract of employment has been approved by the Service for Foreign Labour. The Committee recalls that Article 7(2) of the Convention and Article 4 of Annex I require that the services rendered by the public employment service in connection with the recruitment, introduction or placement of migrants for employment are to be rendered free of charge. Article 2(b) of Annex I defines introduction as any operations for ensuring or facilitating the arrival in or admission to a territory of persons who have been recruited within the meaning of Article 2(a) of Annex I. Noting that it is the long-term residence visa that authorizes the foreigner to work, and taking into account OFII’s functions regarding the introduction of third country nationals who are wage earners and the taxes due by the foreign worker to OFII for the delivery or the renewal of a residence permit, the Committee notes that it is unclear whether the services provided by OFII in connection with the introduction of foreign workers are services within the meaning of Article 7(2) of the Convention and Article 4 of Annex I which should be rendered free of charge. In these circumstances, the Committee requests the Government to provide information on the specific services provided by OFII regarding the recruitment, introduction and placement of migrant workers, and any costs charged to the migrant workers who benefit from these services, and to indicate which services are covered by the fees related to the issuing or renewal of the residence permit authorizing employment.

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

[The Government is asked to reply in detail to the present comments in 2014.]