Committee on Rights of Migrant Workers
5 April 2017
The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families today concluded its consideration of the initial report of Jamaica on its implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
Cherryl Gordon, Chargé d’Affaires a.i., Permanent Mission of Jamaica to the United Nations Office at Geneva, introducing the report, said that Jamaica had a long history of labour migration as a country of origin, transit and destination. It was grappling with a critical shortage of well-needed skills in the healthcare and education sectors, resulting from the emigration of nurses and teachers in particular, whose recruitment by overseas interests had intensified in recent years.
The legal and institutional framework and architecture for migration management were in place. The Ministry of Labour and Social Security had the mandate to protect the rights of Jamaican workers both locally and overseas; to process foreign workers in Jamaica; to manage the 60-year-old Government’s Overseas Employment Programme; and to license and monitor private employment agencies. Migrant workers abroad had access to the Liaison Service – an extensive, consular-like service with offices in Canada and the United States, which provided welfare and protective services to Jamaican workers on the Government’s Overseas Employment Programme.
In the ensuing dialogue, Experts noted that some of the laws in the Jamaican legal framework on migration dated back to colonial times and inquired about their harmonization with the Convention and the contemporary issues of labour migration and steps taken to develop a comprehensive migration policy based on the Convention. Experts further asked about the level of participation of civil society in migration policy development and implementation, and their role in communicating with the public on migration issues; the possibility of migrant workers in Jamaica and abroad to access complaint mechanisms, justice, and effective remedy and address; and actions to address any instances of racism and racist sentiments against migrant workers from Western Africa, for example, and racial discrimination against Jamaican migrant workers abroad. The delegation was asked to comment on the practices of detention and deprivation of liberty on grounds of irregular migration, deplorable conditions in detention centres, excessive use of force by the police during arrests, and torture and ill-treatment of migrant workers deprived of liberty.
In concluding remarks, Pablo Ceriani Cernadas, Committee Vice-Chairperson and Rapporteur for Jamaica, recognized the difficulties in submitting an initial report and said that the lack of report and concrete data meant that the dialogue could not go into great depth.
Salome Castellanos Delgado, Committee Expert and Co-Rapporteur for Jamaica, in her concluding remarks concurred that the lack of the report complicated the review of Jamaica and stressed that the State party and the Committee worked towards the same ideal.
Ms. Gordon thanked the Committee and said that its concluding observations would be conveyed to the relevant authorities in Jamaica.
José Brillantes, Committee Chairperson, concluded by thanking the delegation for the constructive dialogue which had provided further insight into the situation of migrant workers in Jamaica.
The delegation of Jamaica included representatives of the Permanent Mission of Jamaica to the United Nations Office at Geneva.
The Committee will next meet in public at 3 p.m. today, 5 April, to begin its consideration of the initial report of Nigeria (CMW/C/NGA/1).
The initial report of Jamaica CMW/C/JAM/1 is not available.
Presentation of the Report
CHERRYL GORDON, Chargé d’Affaires a.i., Permanent Mission of Jamaica to the United Nations Office at Geneva, reiterated the commitment of Jamaica to the Sustainable Development Goals and to the protection of the human rights of its citizens, which was the central theme of Vision 2030 Jamaica, its national development plan. Jamaica had a long history of labour migration as a country of origin, transit and destination; its people migrated to work in Cuba, Panama, the United States, Canada and the United Kingdom, while the colonial period had been characterised by a consistent inflow of skilled labour recruited overseas. Jamaica was grappling with a critical shortage of well-needed skills in the healthcare and education sectors, resulting from the emigration of nurses and teachers in particular, whose recruitment by overseas interests had intensified in recent years. To address this issue, the Government had adopted policies to bond workers for a specific period of employment, increase the number of people trained and to recruit workers from overseas.
The legislative framework which formed the basis of labour migration policies included nine main statues, such as the Employment Agencies Regulation Act, the Foreign Recruiting Act, the Recruiting Workers Act, the Immigration Restriction Act, the Trafficking in Persons Act, and others. In addition, Jamaica was a signatory to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the International Labour Organization Convention N° 97 on migration for employment, and other international treaties. Six Ministries and Agencies of the Government had primary responsibility for migration matters; the Ministry of Labour and Social Security was mandated with protecting the rights of Jamaican workers both locally and overseas, and processed foreign workers recruited to meet the needs of the local labour market. It managed the circular migration of Jamaican workers for temporary employment under the Government’s Overseas Employment Programme, and licensed, regulated and monitored the operation of private employment agencies which recruited workers for short term employment both locally and overseas. The Ministry of Foreign Affairs and Foreign Trade offered general consular support to Jamaican nationals, including on issues specifically affecting migrant workers. Together with the Ministry of Labour and Social Security, it managed a Liaison Service – an extensive, consular-like service with offices in Canada and the United States, which provided welfare and protective services to Jamaican workers on the Government’s Overseas Employment Programme.
The Overseas Employment Programme had contributed to Jamaica’s social and economic development for more than 60 years and had assisted in providing a stable source of income to support thousands of families, particularly in rural areas. Jamaica had benefitted significantly from the inflow of remittances over the years which had helped stabilize the foreign exchange market, increased savings and productivity through technological transfer, and reduced poverty and social inequality. The Government administered four programmes, namely the United States farm work programme, the United States hospitality (hotel workers) programme, the Canadian seasonal agricultural workers programme and the Canadian low skills programme. Jamaica had a policy of providing an enabling and facilitative environment for persons migrating to Jamaica for work, and ensuring that the economy was supplied with the labour and skills necessary for growth and development whilst protecting the jobs of Jamaicans.
Questions from the Committee Experts
PABLO CERIANI CERNADAS, Committee Vice-Chairperson and Rapporteur for Jamaica, asked about concrete steps taken to ensure that the normative framework was in line with the provisions of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and other relevant international treaties, as well as to align the laws, some of which had been adopted during the colonial times, with the contemporary reality of labour migration.
Another Expert asked about the ratification of other relevant instruments which addressed the issues of labour and migration, and how data was being collected and used in policy and planning. Was there a national human rights institution in Jamaica and which channels of communication on migration issues existed between the Government and the citizens?
PABLO CERIANI CERNADAS, Committee Vice-Chairperson and Rapporteur for Jamaica, asked whether steps had been taken to develop a comprehensive migration policy based on the Convention.
Committee Experts took note of the institutional structure on migration and asked how the coordination between the six ministries and agencies was being done. Stressing the important role of civil society organizations in protecting the rights of the people, including migrant workers, Experts asked about their participation in migration policy development and implementation, and their role in communicating with the public on migration issues. What was the impact on Jamaica of new migration policies developing in the United States?
The delegation was asked about access to complaint mechanisms, justice and effective remedy and address, both for migrant workers in Jamaica and overseas.
What was Jamaica doing to address any instances of racism and racist sentiments against migrant workers from Western Africa, for example, and racial discrimination against Jamaican migrant workers abroad?
How did Jamaica ensure that children of migrant workers had equal access to education, on an equal footing with other children in the country?
PABLO CERIANI CERNADAS, Committee Vice-Chairperson and Rapporteur for Jamaica, asked about practices of detention and deprivation of liberty of persons on the grounds of irregular migration and asked the delegation to provide detailed data and information on any such cases, including the number of persons affected, duration of detention, access to legal aid, etc. How many migrants had been subjected to expulsion orders, for which purposes and according to which procedures? What was the role of consular services in protecting the rights of citizens abroad who were subject to detention or expulsion?
What procedure was in place to register the nationality of children born in Jamaica to migrant parents, documented and undocumented alike? Were there cases of Cuban or Haitian migrants in this situation?
SALOME CASTELLANOS DELGADO, Committee Expert and Co-Rapporteur for Jamaica, noted the difficulty in obtaining data on migrant workers, and asked how undocumented migrant workers were considered and treated. How many undocumented workers were there in Jamaica and what were their countries of origin? Were there cases of children of migrant workers who were not allowed to go to school?
Response by the Delegation
The delegation said that not much information was available on incoming migration to Jamaica, as it had not been a prevalent phenomenon over the past several years.
On the normative framework, it was explained that all laws and policies in place were reviewed and brought in line before any international instrument was ratified. Jamaica was a young country, which had obtained independence from the United Kingdom in 1962, but its freedom movement had been rooted in labour, thus it had very progressive thinking on labour rights. Therefore, many laws were in harmony with international human rights law in this respect.
The Disabilities Act of 2014 sought to ensure the full and equal treatment of persons with disabilities on an equal footing with other members of the society. Policies in force prohibited disability-based discrimination and discrimination against persons living with HIV/AIDS in the workplace.
The national human rights institution would be established soon, with the adoption of legislation to expand the mandate of the Office of the Public Defender. The protection of the rights of migrant workers was not compromised by the absence of the national human rights institution.
The draft policy and plan of action on international migration had been completed in 2015; it sought to maximise the benefits and minimise the negative impacts of international migration in the current global context. Several measures had been identified to enhance the protection of the rights of migrant workers, for example through the provision of pre-departure orientation and reintegration measures at the end of short-term assignments overseas, and the training of migrant workers and their families on the management of remittances.
Nationals of the Caribbean Community were free to establish themselves in Jamaica for purposes of work and business for a defined period of time, and the amendments to the law on the free movement of skilled persons in the Caribbean Community allowed for the indefinite stay of this category of workers.
Migrant workers could lodge a complaint with the Ministry of Labour concerning issues of remuneration, conditions of work, failure to provide notice in termination of contract, or paying salary below the minimum wage.
On awareness raising, for the most part, the Government was not advising nationals about the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, but rather about the national laws which already incorporated the provisions of the Convention.
Jamaicans were informed about redress mechanisms available for rights breaches through bulletins and guidelines through the Government Information Service, as well as through radio programmes, which were the best medium to pass on messages to the public.
There were no policies which discriminated against migrant workers, including on the grounds of sexual orientation and gender identity.
Questions by the Committee Experts
In the next round of questions, a Committee Expert stressed the obligation of the State to provide its migrant workers with information on countries of migration and asked the delegation to provide more details on pre-departure orientation and training.
PABLO CERIANI CERNADAS, Committee Vice-Chairperson and Rapporteur for Jamaica, inquired about initiatives to enable Jamaican migrant workers to vote in their host countries.
SALOME CASTELLANOS DELGADO, Committee Expert and Co-Rapporteur for Jamaica, addressed the issue of remittances and asked whether there were any programmes to facilitate their use for the development of migrant workers’ families and communities. What were the costs of transferring remittances?
Jamaica had in place the national action plan on child labour which increased the protection of children from school drop-out, ill-treatment and abuse – what was the legal basis of this action plan?
How were private recruitment agencies organized and licensed?
PABLO CERIANI CERNADAS, Committee Vice-Chairperson and Rapporteur for Jamaica, inquired about measures adopted to facilitate the repatriation and return of migrant workers and their families, including those returning involuntarily, such as those deported due to their irregular status in the destination country, or for committing a crime there. Were the returning migrants in any way stigmatized or associated with criminality?
The delegation was asked about measures taken to eliminate human trafficking and to address its underlying causes, particularly in the framework of regional and international initiatives and cooperation. Which specific measures had been put in place to protect children from trafficking for purposes of sexual exploitation? What data was available on prosecutions and sanctions for human trafficking?
Response by the Delegation
Responding to those and other questions, the delegation said that there were discussions on granting Jamaicans abroad the right to vote.
The Ministry of Labour had the mandate to monitor private recruitment agencies in accordance with the law; all such agencies must be licensed. There were 50 overseas employment agencies which were active in the areas of student work and travel, seasonal work, cruise ships, and others. The Ministry checked the books and accounts and held interviews with agency staff to verify compliance.
Jamaica did not support the idea of “taking a cut” of remittances; traditionally, the Government facilitated the transfer of remittances by migrant workers to their private bank accounts to be used by their families.
Social workers from the Ministry of Labour and Social Welfare provided support to migrant workers and their families, for example, if families were not receiving the money from the family member abroad, social workers would facilitate the resolution of the problem.
A shelter for victims of human trafficking had been opened in 2013, where they could find refuge and receive health, psychological and legal aid. The Theodora project was run by a religious organization to empower young people at risk of human trafficking and sexual exploitation by offering them skills and educational opportunities and help them make smart choices. The project had rescued women victims of human trafficking and raised awareness in communities about the phenomenon of trafficking in persons.
Jamaica would review its compliance with the International Labour Organization Convention N°87 in accordance with the recommendations received, and any legislative amendments would be discussed with social partners.
For the moment, available data did not show a negative impact of the new migration policy in the United States on Jamaica and its migrant workers.
The child protection act made it an offence for a child not to attend school; this law was equally applicable to children of migrant workers.
No policies were in place to take a part of remittances by migrant workers. Until recently, workers in Canada and the United States could transfer remittances to their private bank accounts in Jamaica, for the use by their families, through Government channels. Since 2010, the workers who had participated in the Overseas Employment Programme in the United States stopped sending remittances through government channels, in keeping with the United States legislation. From 2016, migrant workers in Canada stopped using that channel as prescribed by the Canadian law. Both the United States and Canada saw the Government-facilitated channels for remittance transfers illegal.
The law capped fees that recruitment agencies could charge for placement abroad; excess fees charged were thus illegal.
A task force on trafficking in persons had been put in place, which was developing a strategy to address human trafficking in collaboration with the International Labour Organization. The Bureau for Women Affairs was the gender machinery in Jamaica; it was a part of the Office of the Prime Minister, and took active part in all awareness raising activities on human trafficking and gender-based violence. The task force involved civil society organizations and coordination meetings were held on a quarterly basis.
The national policy on international migration addressed the protection of the rights of migrants and their families; it did not specifically speak of the implementation of the Convention, as it had already been incorporated in domestic laws.
In terms of consultation with civil society, the delegation explained that civil society organizations were consulted on some migration-related issues in policy development. The Consultation Code of Practice for the public sector was in place which the Government had to follow. Migration involved border security issues, which was a sensitive issue and involved sensitive information. Non-governmental organizations were not very much involved in migration management issues, but rather in providing shelter and relevant services.
The National Statistical Institute had started a project on establishing a central migration database in collaboration with the International Organization for Migration. The purpose was to pull together the data which currently existed in a number of Ministries.
Judges did not receive specific training on migration issues, as those questions were part of the human rights training provided to judges on all international human rights instruments that Jamaica was a party to.
The Trafficking in Persons Act criminalized forced labour, child trafficking, sexual exploitation, and domestic servitude. The concept of sex tourism was not recognized in Jamaican law, partly because the term suggested a legitimate activity.
The delegation explained the return and repatriation process which applied to all persons returning to Jamaica, voluntarily or not, which also included the verification of any criminal charges pending against those persons in countries they were returning from.
Questions by the Committee Experts
PABLO CERIANI CERNADAS, Committee Vice-Chairperson and Rapporteur for Jamaica, asked about regional migration initiatives, in particular those which did not fit into the existing Caribbean Community agreement on migration of skilled workers.
Committee Experts further raised the question of protection and care of children of migrant workers who were left behind and did not have family to care for them; and the deplorable conditions in detention centres where detained migrants were held, including lack of separation of children from the adult population, excessive use of force by the police during arrest, and torture and ill-treatment of migrant workers deprived of liberty. What mechanism was in place to receive complaints from those deprived of their liberty on grounds of their migration status and to obtain remedies for rights violations?
JOSÉ BRILLANTES, Committee Chairperson, was concerned about non-participation of non-governmental organizations in the development of migration policy and asked the delegation why this was the case.
Response by the Delegation
With regard to regional migration initiatives, the delegation said that there was a regional mechanism to manage the mass movement of populations due to disasters for example.
Jamaica recognized there was a distinction between migrants, migrant workers, refugees and displaced persons and applied different procedures to each of those.
It was important to stress that the Caribbean Community was not a contiguous space, with diversity of its members, which meant that a common approach to the movement of people would not be the same, depending on the situation of each individual State.
Turning to the situation of children left behind by migrant workers, the delegation said that the family services unit within the Ministry of Labour and Social Welfare, staffed with social workers, made routine visits to families to assess their situation and engage the intervention of State agencies as needed. The Ministry assessed whether the living conditions of children left behind were adequate, including receiving necessary health and medical assistance, as well as their school inscription and attendance.
In response to questions raised about the situation of detention on the basis of migratory status, excessive use of force, torture and ill-treatment, the delegation reiterated that torture was illegal in the country and urged the Committee to read the responses of Jamaica during its recent review by the Human Rights Committee. There were no reports of migrants in detention who were ill-treated.
PABLO CERIANI CERNADAS, Committee Vice-Chairperson and Rapporteur for Jamaica, recognized the difficulties in submitting an initial report and said that the lack of the report and concrete data meant that the dialogue could not go into great depth. The Committee also did not receive information from civil society organizations, partly because there were very few non-governmental organizations working on migration issues, and partly because a forum for a dialogue with the Government did not exist. The country Rapporteur explained that the Committee was interested in understanding the motivation to migrate and wondered whether discrimination on grounds of sexual orientation and gender identity played a role.
SALOME CASTELLANOS DELGADO, Committee Expert and Co-Rapporteur for Jamaica, concurred that the lack of the report complicated the review of Jamaica and stressed that the State party and the Committee worked towards the same ideal.
CHERRYL GORDON, Chargé d’Affaires a.i., Permanent Mission of Jamaica to the United Nations Office at Geneva, committed to convey the Committee’s concluding observations to the relevant authorities and to provide additional information as promised during the dialogue.
JOSÉ BRILLANTES, Committee Chairperson, thanked the delegation for the constructive dialogue which had provided further insight into the situation of migrant workers in Jamaica and Jamaican citizens who were migrant workers abroad.
For use of the information media; not an official record
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