Doc. 9610

30 October 2002

Residence, legal status and freedom of movement of migrant workers in Europe: lessons from the case of Portugal

Opinion¹

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Milos Budin, Italy, Socialist Group

I.       Conclusions of the committee

1.        The Committee on Legal Affairs and Human Rights fully supports the report and the draft recommendation presented by the Committee on Migration, Refugees and Demography. It considers that besides the rights guaranteed by the European Convention on Human Rights (ECHR), there is a whole range of rights, in particular in the social and economic fields, which are fundamental in order to ensure that a human being can live in dignity and security. Council of Europe members states should ensure the enjoyment of these rights to everyone under their jurisdiction, including migrant workers.

2.        The Council of Europe conventions on the “Legal Status of Migrant Workers” and “on Establishment” are important legal instruments for granting basic legal guarantees to migrant workers all over Europe, including in central and east European countries, where the protection given by national legislation can be far lower than that provided by the European Union member states.

3.        The committee fully supports the call on member states to sign and ratify these conventions as well as the proposal that the Council of Europe should take initiatives aimed at ensuring that common rules relating to residence, transit and expulsion procedures are applied in the Council of Europe area.

II.       Amendments to the draft recommendation

Amendment A

To insert a new paragraph after paragraph 5:

“The Assembly also recalls that this Convention is an important instrument for granting basic legal guarantees to migrant workers in Central and Eastern European countries, where the protection given by national legislation can be far lower than that provided by the European Union member states”.

Amendment B

To insert a new sub-paragraph after sub-paragraph 9-ii:

“Ask its appropriate committee to analyse the reasons why so few member states have so far adhered to the above-mentioned Council of Europe conventions and, in the light of this analysis, take corresponding measures aimed at increasing the number of States Parties to these conventions”

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III.       Explanatory memorandum

by Mr Budin, Rapporteur

A.       General considerations

1.        I consider that besides the rights guaranteed by the European Convention on Human Rights (ECHR), there is a whole range of rights, in particular in the social and economic fields, which are fundamental in order to ensure that a human being can live in dignity and security.

2.        Council of Europe member states should do their utmost to ensure effective enjoyment of these rights not only with respect to their nationals but also, in the spirit of the ECHR, with respect to everyone within their jurisdiction. This interpretation obviously covers migrant workers, who are often in an especially vulnerable position and in need of protection.

3.        The protection given to migrant workers must be based on some legal minimum standards, which must be accepted all over the Council of Europe area. The Council of Europe conventions are the best-suited tools to achieve this objective and the existing European Convention on the Legal Status of Migrant Workers as well as the European Convention on Establishment have been drafted with this in mind.

4.        I welcome that the European Union legislation provides greater protection to intra-European migrant workers than these two Council of Europe legal instruments. This is perfectly in line with the theories of “concentric circles” and “complementarity” between the European Union and the Council of Europe. Nevertheless, as the reporting committee rightly points out, millions of migrant workers in Europe are non-EU nationals and thus not covered by EU legislation.

5.        The report, concentrating on lessons from the case of Portugal, deals mainly with the situation of non-EU migrant workers in the European Union member states. Nevertheless, it should be remembered that there are millions of migrant workers in Central and Eastern European countries which are not members of the EU. More significantly, the level of protection granted to them by the national legislation of these countries is often far lower than that given in the European Union and, therefore, the guarantees provided by the Council of Europe legal instruments are even more necessary.

B.       Common rules relating to residence, transit and expulsion of migrant workers in the Council of Europe area

6.        I fully support the proposal that that Council of Europe should take initiatives aimed at ensuring that common rules relating to residence, transit and expulsion procedures are applied in the Council of Europe area. It would represent a concrete contribution of the Council of Europe to European integration with direct a impact on millions of people.

7.        The studies proposed by the reporting committee in this area should, of course, take into consideration the “acquis” of the European Union so that these common rules are formulated along the same basic principles. This is, in particular, important in the case of the European Union candidate countries for which these rules would be a further step towards EU membership.

C.       State of ratification of the Council of Europe conventions relating to migrant workers

8.        It appears strange that after the fall of the “iron curtain” and the subsequent substantial increase of movements of migrant workers throughout Europe, only Moldova among the Central and Eastern European countries has ratified the European Convention on the Legal Status of Migrant Workers. The report of the Committee on Migration, Refugees and Demography deals with reasons why this Convention should be ratified, but it does not analyse the reasons why so few member states have done so.

9.        This situation seems surprising, in particular from the point of view of the eastern European countries, whose citizens live as migrant workers in Western European countries which are Parties to the Convention on the Legal Status of Migrant Workers. Some of these eastern European countries will not be joining the European Union in the foreseeable future.

10.        Accordingly, I consider that the appropriate committee of the Committee of Ministers should analyse this situation and, in the light of this analysis, take corresponding measures aimed at increasing the number of the States Parties to the two conventions relating to migrant workers.

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Reporting committee: Committee on Migration, Refugees and Demography

Committee for opinion: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 9168, Reference No 2646 of 25 September 2001

Opinion approved by the committee on 28 October 2002

Secretaries to the committee: Ms Coin, Mr Sich, Ms Kleinsorge, Mr Ćupina, Mr Milner

¹ See Doc 9603 tabled by the Committee on Migration, Refugees and Demography.