III. Chaper VI Annual Report 2002

III. GENERAL OVERVIEW OF STATE POLICY AND PRACTICE CONCERNING THE HUMAN RIGHTS OF MIGRANT WORKERS AND THEIR FAMILIES

22. One of the main functions of the Special Rapporteurship consists of the observation and monitoring of policies and practices affecting the human rights of migrant workers and their families. These activities aim at contributing to improve the understanding of problems faced by migrant workers and their families in the different states of the Americas. They also seek to help the Rapporteurship to plan specific promotional activities for relevant personnel, organizations, and migrants themselves in places were these activities are deemed relevant.

23. This section of the annual report presents a brief overview of policies and practices that, in the opinion of the Rapporteurship, had impact on the human rights of migrant workers and their families in the Americas. The period covered corresponds to 2002. In some cases, the section alludes to information of different or prior periods that was divulgated in 2002.

International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families

24. On December 10, 2002, East Timor became the twentieth country to ratify the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families. The Convention thus will become effective on 1 April 2003. The countries in the Americas that have ratified this convention include Belize, Bolivia, Colombia, Mexico and Uruguay.

Request for an Advisory Opinion

25. Mexico requested the Inter American Court on Human Rights to issue an Advisory Opinion concerning the right to non-discrimination of migrants. The Court accepted the request, which is now under review.

Cases before the Inter American Commission on Human Rights

26. The Foreign Ministry of the Dominican Republic signed a Memorandum of Understanding, whereby it committed itself to creating a committee to oversee that the provisional measures dictated by the Inter American Court on Human Rights in favor of Haitian and Dominican families of Haitian descent living in the Dominican Republic were complied with.

Migration Flows

27. The United Nations Population Division indicated that, according to a recent study, 175 million people resided for more than twelve months in a country different to that of their nationality or place of birth in 2000.

28. The Economic Commission for Latin America and the Caribbean (ECLAC) calculated that at least 20 million of the migrants in the world were Latin American. According to ECLAC’s estimates, seventy percent of Latin American and Caribbean migrants live in the United States.

29. Immigration of Argentine nationals to diverse destinations increased as a result of the economic crises affecting the country. Calculations indicate that between 60-80 thousands Argentines have emigrated last year, most to Italy and Spain.

30. It is calculated that 120.000 undocumented Peruvians live in Argentina.

31. Likewise, it is estimated that 12.900 Peruvians live in Chile without proper authorization.

32. Immigration of Colombian nationals has increased. The International Organization of Migration (OIM) indicates that between 1997 and August 2002, 1.2 million Colombians emigrated, mostly to Panama, Venezuela and Ecuador. Colombia’s population reaches 37 million people.

33. Last year the number of Venezuelan immigrants peaked. Spain, Portugal and Italy were among the most important destination for Venezuelan immigrants.

34. In the last three years, approximately 300 thousand Ecuadorians have emigrated. Ecuador’s has 13 million inhabitants.

35. In 2001, 250.346 people immigrated to Canada. Up to 61% were migrant workers and their families while 27% were refugees. The rest were people who immigrated to Canada as part of family re-unification schemes. Data showed that in 2001, 17% of Canada’s population was foreign born.

36. Studies indicated that up to 1.5 million Salvadorans leave outside the country.

Remittances

37. The United Nations Population Division indicated that remittances of nationals of Jamaica, El Salvador and Nicaragua living abroad became more than 10% of the Gross Domestic Product (GDP) of these countries.

38. Remittances of Mexican workers in the United States reached U$ 9.2 billion dollars in 2002. Remittances thus have become the third source of foreign currency behind oil and tourism.

39. In 2001, remittances of Ecuadorian migrant workers leaving outside the country reached U$ 1.2 billion dollars.

Measures to regularize migration status

40. The four members of the South American Common Market (Mercosur), Argentina, Brazil, Paraguay and Uruguay, in addition to Chile and Bolivia, signed an accord that allows citizens of these countries to migrate and work legally in all these countries. The requirements for migrant workers to meet the conditions of the accord include: have a passport or other personal information document, birth and civil status documents, certification that the person does not have a criminal record, and a sanitary certificate. The accord needs to be ratified by the legislative bodies of the aforementioned countries in accordance to domestic law.

41. Mexico and Guatemala signed an accord to regularize the migration status of approximately 80 thousand Guatemalan farm workers residing in Mexico.

42. The United States government extended the Temporary Protected Status (TPS) to nationals from Honduras and Nicaragua affected by Hurricane Mitch (1998) until July 2003.

43. The United States government extended the Temporary Protected Status (TPS) to nationals from El Salvador affected by earthquakes (2000) until September 2003.

Guidance, Smuggling and Trafficking in Persons

44. In May 2002, the United States government issued the first T visa to a victim of human trafficking. This visa, approved under the 2000 Statute for the Protection of Victims of Human Trafficking, allows persons to stay in the United States when, upon their return to their country of origin, they have to face a particularly difficult situation. The first T visa was extended to a four-year old Thai child who entered the country with false documents and accompanied of two adults who were not relatives of his. The Thai minor is HIV positive.

45. In August 2002, migratory authorities in the United States, Guatemala, El Salvador and Honduras captured several persons who were part of a ring of human traffickers sending minors from El Salvador and Guatemala to the United States. Minors attempted to enter the United States illegally to be reunited with their relatives.

Deportation

46. In December 2000, Guatemala suspended the reception of Central American citizens deported from Mexico. Guatemala took this decision as a reaction to the suspension of economic support to undertake the program for Safe and Orderly Repatriation of Central American migrants. Under this program, Guatemala allowed through its territory the passage of buses carrying deported Salvadorans, Nicaraguans and Hondurans from Mexico who were en route to their countries of origin. Today Guatemala only authorizes the entrance to its territory of Central Americans in possession of CA-4 documents. Derived from an intergovernmental agreement, the CA-4 ID grants people from Honduras, Nicaragua, Guatemala, and El Salvador free circulation in these four countries.

The Right to Social Security

47. The United States Social Security Administration sent 750 thousand letters to employers across the country informing them that they had made contributions to the Social Security Fund in the name of workers who had irregular social security numbers. Employers, the authorities determined, had thirty days to fix inconsistencies in the social security numbers of their workers; otherwise, they would be penalized. It is estimated that a sizable percentage of the inconsistent social security numbers corresponded to undocumented migrant workers who obtain fake or duplicate existing social security numbers.

48. The Mexican and Guatemalan governments subscribed an agreement to help Guatemalan migrant workers obtain the assistance of the Mexican Institute of Social Security.

The Right to Asylum and Non-Refoulement

49. Canada and the United States signed an agreement concerning asylum procedures. According to a so-called “safe third country of asylum” accord, asylum seekers ought to claim asylum in their first country of entry and not carry their claim into a second country. In other words, people soliciting asylum in Canada entering from the United States will be required to claim asylum in the United States (and vice-versa).

Labor Rights

50. The US Supreme Court issued its ruling on the Hoffman Plastic Compounds Inc. v. National Labor Relations Board case. The Court determined that undocumented or irregular workers do not have the right to claim backpay when it is determined that they were laid off, for participating in activities related to union-organizing, in violation of norms.

Right to a Public Hearing

51. In September 2001, the Immigration and Naturalization Service ordered that the hearings for 600 so called “special cases” be carried out on closed doors. Additionally, the US government refused to release the names of the persons in custody.

52. In August 2002, a US Federal Judge ordered authorities to release the names of the people it had in custody and that the hearings on their cases were public. The decision was confirmed by the Sixth District US Appeals Court, which rejected the arguments that the hearing in migratory procedures are of an administrative nature and thus different to judicial procedures.

Right to Personal Freedom

53. In the United States, approximately 1,200 people were apprehended as part of investigations related to the attacks of September 11, 2001, including 752 persons charged with violations of immigration rules. Until August 2002, 81 of them remained in custody. The rest was either deported or released without charges. None of the people in custody were formally charged with any offense.

Consular Protection

54. As part of consular protection activities, Mexican consulates in the United States issued consular registrations –identification cards- to its citizens. Mexico calculated that it would issue approximately 850 thousand consular registration cards during 2002. During the first semester, the Mexican government issued 448 thousand consular registration cards. Mexican Consulates across the United States have carried out campaigns in order to convince financial institutions, transportation companies and local governments to accept these documents. Acceptance of this form of identification would help Mexican migrant workers and their families to open bank accounts, board planes and other transportation vehicles and identify themselves to the police and authorities.

Protection of Migrants in their Country of Origin

55. In August 2002, the Mexican Government created the National Council of Mexican Communities Abroad. The new council was created to channel the interests from and organize the participation of Mexican migrants in different topics.

Program for the Assisting the Return of Migrants

56. OIM and the governments of Cuba and Haiti signed an accord to assist the voluntary return of irregular Haitian migrants who arrived to Cuba and aspire to return to Haiti. Haitian migrants often end up arriving to Cuba’s shores en route to the United States. In 2002, 188 persons benefited of this initiative. In 2001, in turn, OIM assisted 532 Haitians of a total of 840 that arrived in Cuba after a failed attempt to reach the US’s shores.

Conferences and other Discussion Forums

57. The Hemispheric Conference on International Migration was celebrated in Santiago de Chile on November 20-22, 2002. The conference touched upon issues related to migration and human trafficking. Concurrently, NGOs who work to promote respect for migrants’ human rights and who comprise the Hemispheric Forum on International Migration also celebrated a meeting in Santiago.

58. The seventh Regional Conference on Migration (RCM) met in Antigua, Guatemala, in May 2002. This intergovernmental forum discusses policies and practices concerning migration and is composed of North, Central American and Caribbean countries.

59. The Regional Network of Civil Organizations for Migration (ROCOM) met simultaneously to the (RCM).

60. The Second South American Conference on Migration met in Ecuador in August 2002.