Doc. 9933

27 September 2003

Residence, legal status and freedom of movement of migrant workers in Europe: lessons from the case of Portugal
Recommendation 1587 (2002)

Reply from the Committee of Ministers

adopted at the 853rd meeting of the Ministers’ Deputies (24 September 2003)

1.       The Committee of Ministers has brought Parliamentary Assembly Recommendation 1587 (2002) on residence, legal status and freedom of movement of migrant workers in Europe: lessons from the case of Portugal to the attention of member states.

2.       The Committee of Ministers underlines that a considerable amount of work has already been carried out by the Council of Europe on the legal status and other rights of migrant workers. The European Committee on Migration (CDMG) and its working parties continue to play a significant role. It has recently approved the publication of a study on the “legal situation of migrants admitted for employment” which has formed the basis for a draft recommendation on labour migration. In this context, the Committee of Ministers has adopted several recommendations to member states, the most recent on the legal status of persons admitted for family reunification (Recommendation Rec(2002)4) and concerning the security of residence of long-term migrants (Recommendation Rec(2000)15).

3.       The Committee of Ministers recalls the Final Declaration adopted at the 7th Conference of European Ministers responsible for Migration Affairs (Helsinki, 16-17 September 2002) on “Migrants in our societies: policy choices in the 21st century”, which encourages member states to sign and ratify the European Convention on the Legal Status of Migrant Workers (ETS No. 93) and the European Convention on Establishment (ETS No. 19) and other relevant Council of Europe instruments likely to improve the situation of migrants. The efforts to promote the Convention on the legal status of migrant workers in Moldova led to its signature in July 2002; the CDMG proposes to carry out similar promotion activities in other selected countries (Armenia, Azerbaijan, Bosnia and Herzegovina, the Russian Federation and Ukraine). Furthermore, drawing on the study “the European Convention on the legal status of migrant workers: an analysis of its scope and benefits”, which was published in 1999, the CDMG proposes, in the framework of the 2004 programme of activities, to analyse the reasons why so few member states have adhered to the above mentioned text, in line with the Assembly’s recommendation.

4.       Also following the Assembly’s recommendation, a study on the notions of residence and residence permits for foreign nationals in Council of Europe member states could be undertaken in 2004, under the auspices of the CDMG.

5.       With regard to paragraphs 7 and 10vi, the Committee of Ministers considers that the situation of migrant workers in Portugal has been clarified by the information provided by the Portuguese authorities appended to this reply and does not call for any further action.

6.       The Committee of Ministers notes the concerns of the Assembly on the situation of migrant workers from member states who have signed but not yet ratified the European Convention on the Legal Status of Migrant Workers. It does not consider that, however, in the present circumstances, involvement of the Consultative Committee is called for, until such time as the member states in question ratify the Convention.

Appendix

Note by the Portuguese authorities concerning Parliamentary Assembly Recommendation 1587 (2002)

In November 2002 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1587 (2002) entitled "Residence, legal status and freedom of movement of migrant workers in Europe: lessons from the case of Portugal".

Paragraph 7 of this recommendation states:

In paragraph 10 (vi.) the Assembly recommends that the Committee of Ministers:

The Parliamentary Assembly continues to monitor this matter, as was confirmed by its representative at the meeting of the European Committee on Migration (CDMG) held from 25 to 27 March 2003, speaking on the subject of the Assembly's activities in migration matters.

Portugal deplores the fact that it has been the subject of an Assembly recommendation based on a mistaken view of Portuguese legislation applicable to foreigners and of the underlying factual circumstances.

First of all, it should be explained that the rules criticised constituted the Portuguese state's response to a considerable increase in the number of immigrants, mostly originating from eastern Europe and unlawfully present on Portuguese territory, noted since the late nineties in the country.

As a result of the above situation, for fundamentally humanitarian reasons, exceptional, transitional legal arrangements were introduced to permit these foreign workers to legalise their status in Portugal without having to return to their country of origin to obtain the work or stay visa required under the relevant national regulations.

This procedure led to the issue of a permanent-stay authorisation, of the same nature as a work visa, whereby the holder was lawfully authorised to reside and work in Portugal and could after five years obtain resident foreigner status. It must be pointed out that, under national law, a residence permit is not the only document authorising a foreign worker to reside permanently in Portugal, since leave to do so may also be granted via a work visa.

It should also be noted that over a period of one and a half years the above arrangements enabled 170,000 foreigners unlawfully present in Portugal, representing 1.7% of the country's population, to legalise their status.

Moreover, issuing permanent-stay authorisations does not constitute a breach of the provisions of the European Convention on the Legal Status of Migrant Workers, since the foreigners to whom they were granted could not be regarded at the time as migrant workers, as defined in paragraph 1 of Article 1 of the convention, as they had not been authorised to reside in Portuguese territory.

Portugal is accordingly surprised to note that it has been criticised for having legalised the status of such a large number of foreigners, whereas the persons concerned, in their previous circumstances, could not even claim the status of migrant workers under the terms of the above-mentioned convention.

It should be added that introduction of these exceptional arrangements corresponded to a legitimate immigration policy option taken by the Portuguese state, which took account of the need to distinguish these foreigners from those who had entered Portuguese territory and were residing there in accordance with the relevant law, i.e. those who had first obtained the necessary work or stay visas.

Portugal therefore considers that the assertion made in paragraph 7 of the recommendation is completely unfounded, since the challenged arrangements not only made it possible to legalise the situation of a fairly large number of immigrants but were also in line with the legal solutions adopted by other European Union member states.

Regarding paragraph 10 vi. of the recommendation, Portugal cannot but express its utter perplexity, since it is unclear what is the link between validity of these exceptional arrangements and possible ratification of the European Convention on the Legal Status of Migrant Workers by Moldova or other non-EU member states, as mentioned in paragraph 10 vi., as justification for monitoring of the situation in Portugal by the Consultative Committee of the convention.

The Consultative Committee's role is to examine any proposals aimed at facilitating or improving the application of the convention. It would appear that the accession of new states cannot in itself have the effect of changing the conditions whereby foreigners may lawfully enter and reside in Portuguese territory.

In view of the above, Portugal rejects the substance of paragraphs 7 and 10 vi. of Parliamentary Assembly Recommendation 1587 (2002) and the expression in the title "lessons from the case of Portugal", as set out in the recommendation.