Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families

Concluding observations on the initial report of Timor-Leste *

1.The Committee considered the initial report of Timor-Leste (CMW/C/TLS/1) at its 298th and 299th meetings (see CMW/C/SR.298 and 299), held on 3 and 4 September 2015. At its 302nd meeting, held on 8 September 2015, the Committee adopted the following concluding observations.

A.Introduction

2.The Committee welcomes the submission of the initial report of the State party, which was prepared in response to the list of issues prior to reporting (CMW/C/TLS/QPR/1), and the additional information provided during the dialogue by the multisectoral delegation, which was headed by Marciano da Silva, Ambassador/Permanent Representative of Timor-Leste to the United Nations Office at Geneva, and comprised of representatives from the Secretariat of State for Vocational Training and Employment Policies, the Ministry of Foreign Affairs and Cooperation, and the Permanent Mission of Timor-Leste to the United Nations Office at Geneva. However, the Committee regrets that the report was only submitted on 1 September 2015, which did not allow sufficient time for translation into the working languages of the Committee, nor for due consideration by the Committee.

3.The Committee appreciates the open and constructive dialogue held with the delegation but notes with regret that the information provided was often general or incomplete, especially with regard to the practical implementation of the Convention in the State party.

4.The Committee notes that some countries in which Timorese migrant workers are employed are not parties to the Convention, which may constitute an obstacle to migrant workers’ enjoyment of their rights under the Convention.

B.Positive aspects

5.The Committee notes that the State party has concluded bilateral and multilateral agreements at the regional and international level and encourages the conclusion of such agreements insofar as they promote and protect the rights of migrant workers and members of their families. The Committee notes, in particular, the State party’s ratification of or accession to the following:

(a)The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the Protocol against the Smuggling of Migrants by Land, Sea and Air, both supplementing the United Nations Convention against Transnational Organized Crime, in November 2009;

(b)Additional Protocols I and II to the Geneva Conventions of 12 August 1949, in April 2005, and Additional Protocol III, in July 2011;

(c)The International Labour Organization (ILO) Forced Labour Convention, 1930 (No. 29), in June 2009;

(d)ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in June 2009;

(e)ILO Right to Organise and Collective Bargaining Convention, 1949 (No. 98), in June 2009;

(f)ILO Worst Forms of Child Labour Convention, 1999 (No. 182), in June 2009.

6.The Committee welcomes the adoption of the Labour Code in 2012.

7.The Committee also welcomes the following institutional and policy measures:

(a)The establishment of the National Directorate of Job Placement and Protection for the Unemployed, in 2013;

(b)The establishment of the Migration Service, in 2008.

C.Factors and difficulties impeding the implementation of the Convention

8.The Committee recognizes that the State party and the general population face numerous difficulties as a consequence of the recent history of conflict and occupation of the State party. It also recognizes the many challenges faced by the State party as a newly independent State, and related factors which may impede the implementation of the provisions of the Convention.

D.Principal subjects of concern, suggestions and recommendations

1.General measures of implementation (arts. 73 and 84)

Legislation and application

9.The Committee welcomes the steps taken by the State party to adopt legislation and policies to protect the rights of migrant workers, including the draft law on migration and asylum and the draft national action plan for labour migration. However, the Committee is concerned that:

(a)The current legal framework governing migration is insufficient, does not fully comply with the Convention and, in certain instances, contains contradictory provisions, such as article 11 of the Immigration and Asylum Act, which contravenes the rights to freedom of speech and to association of migrant workers guaranteed by the Constitution, and which has been judged by the Court of Appeal to be unconstitutional;

(b)There is insufficient coordination among the institutions and services that deal with the various measures to implement the rights under the Convention.

10. The Committee recommends that the State party take the necessary steps to ensure that its national laws and policies are in line with the provisions of the Convention and that the existing contradictions are resolved. The Committee also recommends that the State party adopt, implement and adequately resource the National Action Plan for Labour Migration and adopt the Law on Migration and Asylum , in line with the Convention and in a gender-sensitive manner. The Committee further recommends that the State party step up its efforts to improve coordination among ministries and agencies at all levels of g overnment for the effective implementation of the rights protected under the Convention, including by ensuring appropriate human and financial resources as well as capacity for key institutions engaged in handling migration issues, such as the Migration Service under the Ministry of the Interior, the Secretar iat of State for Vocational Training and Employment Polic ies , the Ministry of Foreign Affairs and Cooperation and the Secretary of State for Support and Socio e conomic Promotion of Women.

11.The Committee is concerned about the lack of information on the application of the Convention by domestic courts.

12. The Committee invites the State party to provide information on the application of the Convention by domestic courts , in its second periodic report .

13.The Committee notes that the State party has not made the declarations recognizing the competence of the Committee to receive and consider communications from State parties and individuals concerning violations of the rights established by the Convention, provided for in articles 76 and 77 of the Convention.

14. The Committee recommends that the State party consider making the declarations provided for in articles 76 and 77 of the Convention.

15.The Committee notes that the State party has ratified or acceded to a number of ILO instruments, but has not yet ratified or acceded to ILO Migration for Employment Convention (Revised), 1949 (No. 97), Migrations in Abusive Conditions Convention, 1975 (No. 143) and Domestic Workers Convention, 2011 (No. 189) as well as a number of other fundamental ILO Conventions.

16. The Committee recommends that the State party consider ratifying or acceding to ILO Migration for Employment Convention (Revised), 1949 (No. 97), Migra nt Workers (Supplementary Provisions) Convention, 1975 (No. 143) and Domestic Workers Convention, 2011 (No. 189) , as soon as possible.

17.The Committee regrets that the State party has not provided sufficient information on the specific measures it has taken to implement the Convention.

18. The Committee urges the State party to include in its second periodic report updated information, supported by statistics, on the concrete measures taken to implement the rights of migrant workers set out in the Convention, both in law and practice.

Data collection

19.The Committee is concerned that the State party has not provided sufficient information on migration flows and on other migration-related issues that would enable the Committee to fully assess the extent and the manner in which the rights set out in the Convention are implemented in the State party.

20. The Committee recommends that the State party establish a system for compiling qualitative and quantitative migration-related statistics and information covering all aspects of the Convention, including migrant workers in an irregular situation, and collect detailed data on the status of migrant workers in the State party. The Committee encourages the State party to compile information and statistics disaggregated by sex, age, nationality, reason for entry into and departure from the country and type of work performed, in order to effectively impact relevant policies and the application of the Convention. The Committee also recommends that the State party ensure the cooperation of its consular and diplomatic representation s abroad in order to compile data on migration, including the situation of irregular migrant workers and victims of trafficking. In cases where it is not possible to obtain precise information, for example, in the case of migrant workers in an irregular situation, the Committee would appreciate receiving information based on studies or estimates.

Training on and dissemination of the Convention

21.The Committee is concerned at the absence of materials and training programmes specifically on the Convention and the rights enshrined therein, and the dissemination of such information among all stakeholders, including national, regional and local government bodies, domestic courts, civil society organizations, migrant workers and members of their families.

22.The Committee recommends that the State party develop education and training programmes on the Convention and that such programmes be made available to all officials and persons working in migration-related areas. The Committee also recommends that the State party ensure that migrant workers have access to information about their rights under the Convention , and work with civil society organizations and the media to disseminate information on the Convention and promote its implementation.

2.General principles (arts. 7 and 83)

Non-discrimination

23.The Committee notes that the Constitution requires that the interpretation of constitutional rights be in line with the Universal Declaration of Human Rights. The Committee also notes that, in addition to the Convention, the State party has ratified six other core human rights treaties that prohibit discrimination on any ground. The Committee is, nevertheless, concerned that the national legislation does not cover all the prohibited grounds of discrimination enumerated in the Convention (see arts. 1 (1) and 7). The Committee also notes with concern that the national legislation pertaining to migration does not contain a clear and specific provision that prohibits gender-based discrimination nor does it provide special protection to migrant women. The Committee is also concerned at reports of discriminatory treatment of migrant workers based on language, age and physical appearance by migration police and government officials dealing with labour affairs, and of discriminatory treatment of migrant workers by employers, especially with regard to wages, time off and other conditions of work. The Committee regrets the lack of information on actual practice and examples that would make it possible to assess the implementation of the right to non-discrimination pursuant to the Convention in respect of both documented and undocumented migrant workers.

24.The Committee recommends that the State party take all necessary measures, including legislative amendments, to ensure that all migrant workers and members of their families, both documented and undocumented, within its territory or subject to its jurisdiction, enjoy, without discrimination, the rights recognized by the Convention, in accordance with article 7 thereof. The Committee recommends in particular that the State party incorporate in its legislation a clear and specific prohibition of gender - based discrimination in relation to migrant women. The Committee also recommends that the State party provide, in its second periodic report, information on actual practice in that regard, together with relevant examples. The Committee further recommends that the State party raise awareness among local authorities, migration officials and the general public of the rights of all migrant workers and members of their families and of the importance of eliminating discrimination against them and of combating their social stigmatization.

Right to an effective remedy

25.The Committee notes that complaints to the Office of the Ombudsman for Human Rights and Justice can be submitted in person, by telephone or by Internet and that complaint boxes have been set up in 65 subdistrict administrations. The Committee is, however, concerned that, to date, the Ombudsman has not received any complaints relating to the rights of migrant workers and their families and no cases of violations of their rights have been taken to the tribunal for adjudication, which may reflect a lack of awareness on the part of migrant workers of their rights and/or of the legal remedies available to them.

26. The Committee recommends that the State party ensure that, in law and in practice, migrant workers and members of their families, including those in an irregular situation, have equal opportunities as nationals of the State party to file complaints and obtain effective redress in the courts in cases where their rights under the Convention are violated. The Committee also recommends that the State party take additional measures to inform migrant workers and members of their families, including those in an irregular situation, about the judicial and other remedies available to them in case of a violation of their rights under the Convention.

3.Human rights of all migrant workers and members of their families (arts. 8-35)

27.The Committee is concerned at reports that boys (as well as men) from Myanmar, Cambodia and Thailand are forced to work on foreign fishing boats operating in Timorese waters, where they face conditions of confinement and malnutrition and do not receive any medical care.

28. The Committee recommends that the State party increase labour inspections and prosecute, punish and sanction persons or groups exploiting child migrant workers or subjecting them to forced labour and abuse, especially in the informal economy. The Committee also recommends that the State party provide adequate assistance, protection and rehabilitation, including psychosocial rehabilitation, to children who have been victims of labour exploitation.

29.The Committee is concerned about reports of incidents of physical and sexual violence, intimidation and negative attitudes towards migrant workers in the State party.

30. The Committee recommends that the State party effectively investigate all cases of violence and intimidation against migrant workers and provide human rights training for public officials and awareness-raising for the general population, with a view to preventing such acts.

31.The Committee is concerned about the lack of information regarding measures to ensure that, in criminal and administrative proceedings, including detention and expulsion proceedings, migrant workers and members of their families, particularly those in an irregular situation, are guaranteed due process on an equal basis with nationals of the State party and that they have access to information in a language they understand. The Committee is also concerned that the existing detention facilities do not have adequate basic services, including food, health care and hygienic conditions, and that migrant workers detained for violations of immigration law are not held separately from prisoners.

32. The Committee recommends that the State party take the necessary steps to ensure that in administrative and judicial proceedings, including detention and expulsion proceedings, migrant workers and members of their families, particularly those in an irregular situation, are guaranteed due process on an equal basis with nationals of the State party before the courts and tribunals. In the light of the Committee’s general comment No. 2 (2013) on the rights of migrant workers in an irregular situation and members of their families, the Committee recalls that administrative detention should only be used as a measure of last resort, and recommends that the State party consider alternatives to administrative detention. The Committee also recommends that the State party:

(a) Include in its second periodic report , detailed disaggregated information on the number of migrant workers detained for immigration offences and the place, average duration and conditions of their detention;

(b) Provide updated information, including disaggregated statistics, on the number of migrant worker expulsions and the procedures used;

(c) Ensure that migrant workers detained for violations of immigration law are held in special facilities separate from prisoners, and that men and women are held separately;

(d) Ensure that the minimum guarantees enshrined in the Convention are assured with regard to administrative and judicial procedures against migrant workers and members of their families.

33.The Committee notes that the National Directorate for Consular Issues of the Ministry of Foreign Affairs and Cooperation provides protection and consular assistance to Timorese migrant workers in the Republic of Korea, the Philippines and Australia. The Committee is, however, concerned at reports of unresolved cases of deportation of Timorese HIV-positive migrants and female migrants who become pregnant, and of Timorese migrants working without proper training and protective equipment, in particular with regard to the handling of pesticides and other dangerous chemicals.

34. The Committee recommends that the State party ensure that all migrant workers and members of their families have recourse to consular support for the protection of the rights set out in the Convention. It recommends that the State party ensure that the personnel in its embass ies and consulate s abroad have appropriate knowledge about the laws and procedures of the countries of employment of Timorese migrant workers.

35.The Committee notes that Timorese labour legislation states that an employed foreign worker is entitled to the same rights and subject to the same obligations as national workers (see Labour Code, 2012, art. 77). The Committee is, however, concerned about reports of abuse and discrimination in terms of wages and time off, and the lack of attention by labour inspectorates to the employment conditions of migrant workers, including those working in the offshore industry and in the commercial, construction, fishing and hospitality sectors. The Committee is also concerned that labour inspections may focus more often on the immigration status of the migrant worker rather than the conditions of work, and that labour inspectors may interview employers rather than employees.

36. The Committee recommends that, in accordance with article 25 of the Convention, the State party guarantee in law and in practice the labour rights of all migrant workers within its territory, including by ensuring that labour inspections focus on the conditions of work of migrant workers, that migrant workers themselves are consulted during such inspections and in a confidential manner. The Committee also recommends that the State party guarantee that labour inspectorates work independently from other departments, in particular immigration authorities, so as to encourage migrant workers to report cases of abuse and exploitation to the labour authorities without fear of immigration authorities becoming involved.

37.The Committee is concerned at reports that only a very limited number of migrant workers in the State party have joined trade unions, that some migrant workers do not join unions for fear of dismissal and that employers do not allow migrant workers to join trade unions or participate in their activities or benefit from their services.

38. The Committee recommends that the State party take all necessary measures, including legislative amendments, to guarantee all migrant workers the right to take part in trade union activities and to freely join trade unions, in accordance with article 26 of the Convention.

39.While noting the efforts taken by the State party to ensure the birth registration of everyone in Timor-Leste and that all children born in the territory of Timor-Leste have the right to have their nationality registered immediately at the time of birth, the Committee is concerned at the lack of specific measures to register migrant children at birth and to ensure their nationality and citizenship rights.

40. The Committee recommends that the State party ensure that all children of migrant workers are registered at birth and issued personal identity documents , and raise awareness on the importance of birth registration among migrant workers and members of their families, especially those in an irregular situation.

41.The Committee is concerned about the lack of information on specific programmes that open up education to migrant workers and members of their families in the State party.

42. The Committee recommends that the State party adopt concrete and effective measures to ensure access to the education system for migrant workers, especially their children, including through addressing linguistic barriers , in accordance with article 30 of the Convention .

43.The Committee notes that the Secretariat of State for Vocational Training and Employment Policies together with the host Governments provide Timorese migrant workers participating in Australia’s Seasonal Worker Program and South Korea’s Employment Permit System with pre-departure information, including on their rights in the countries of employment. However, the Committee notes with concern that there seem to be a lack of clear communication on the part of the State party regarding the cost of travel to South Korea. The Committee also regrets the lack of information on government initiatives to provide information to migrant workers and members of their families outside of those temporary programmes on the rights protected by the Convention and on their rights and obligations in the State party.

44.The Committee recommends that the State party take appropriate measures to disseminate information on the rights of migrant workers under the Convention, the conditions of their admission and employment, and their rights and obligations under the laws and practice of the States of employment. The Committee also recommends that the State party further develop targeted pre-departure and awareness-raising programmes, including in consultation with relevant non-governmental organizations, migrant workers and their families, and recognized and reliable recruitment agencies.

4.Other rights of migrant workers and members of their families who are documented or in a regular situation (arts. 36-56)

45.The Committee notes that articles 44 to 46 of the Immigration and Asylum Act recognize the right to family reunification. The Committee is, however, concerned that that right is guaranteed only to foreigners who have a permanent residence visa, which excludes most documented migrant workers.

46.The Committee recommends that the State party take the necessary measures to ensure the protection of the unity of the families of migrant workers and to facilitate the reunification of migrant workers with their spouses or persons with who m they have a relationship that, according to the applicable law, is equivalent to marriage, as well as with their minor dependent , unmarried children, in accordance with article 44 of the Convention.

47.The Committee welcomes the ratification, in June 2009, of ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee is, however, concerned that article 11 of the Immigration and Asylum Act explicitly prohibits non-nationals from “participation in the administration or social organs of a union, corporation or professional organization, or in agencies that monitor paid activities”, despite the 2003 decision of the Court of Appeal, which found that and other provisions of the Immigration and Asylum Act unconstitutional.

48. The Committee recommends that the State party take the necessary measures to guarantee to migrant workers and members of their families, both in law and in practice, the right to form and be a member of the executive bodies of associations and unions for the promotion and protection of their economic, social, cultural and other interests, in accordance with article 40 of the Convention and ILO Freedom of Association and Protection of the Right to Organi s e Convention, 1948 (No. 87).

49.The Committee regrets that the law currently allows Timorese voters to vote only in their village of registration as this provision seriously limits the voting rights of Timorese migrant workers.

50. The Committee recommends that the State party undertake all measures, including those of a legislative nature , to ensure the implementation of the right to vote for Timorese migrant workers residing abroad.

51.The Committee is concerned about the absence of information about partnerships with financial institutions to facilitate the transfer of earnings and savings of Timorese migrant workers abroad and of migrant workers in the State party. The Committee is in particular concerned that there is no non-bank financial institution regulation in effect in the State party, which puts a constraint on growth and expansion of microfinance institutions and their ability to facilitate the transfer of earnings and savings of migrant workers. The Committee is also concerned about the State party’s interference in the remittances of Timorese workers participating in South Korea’s Employment Permit System by controlling access, albeit temporarily, to one of the two accounts that are mandatorily set up for each worker.

52. The Committee encourages the State party to facilitate the transfer of remittances by Timorese migrant workers abroad without prescriptive interference by the State party. It also recommends that the State party undertake measures to facilitate the transfer of earnings and savings of migrant workers in Timor-Leste with preferential transfer and reception fees and to make savings more accessible to migrant workers and members of their families.

53.The Committee is concerned that the national legislation governing the relationship between labour migration and residency is unclear, that the granting of a work permit is conditional on the existence of employment and that loss of employment may result in the loss of the work permit, which impacts on the legal situation of migrant workers.

54. The Committee recommends that the State party bring its laws and practice into line with article 49 of the Convention in order to ensure that the right of a migrant worker to reside in the country for the purpose of employment shall not be revoked if the migrant worker loses employment prematurely.

5.Promotion of sound, equitable, humane and lawful conditions in connection with international migration of workers and members of their families (arts. 64-71)

55.The Committee regrets the limited information about specific measures taken to promote sound, equitable and humane conditions in connection with international migration and to address illegal and clandestine movements and employment of migrant workers in an irregular situation, including through international agreements, policies and programmes.

56. The Committee invites the State party to provide information in its second periodic report on irregular migration to and from the State party and on the measures taken to address it , including through international agreements, policies and programmes.

57.The Committee regrets the limited information about the existence of private employment agencies in the State party that recruit migrant workers to work abroad, and the lack of laws, rules and regulations pertaining to private recruitment.

58.The Committee recommends that the State party take the following measures:

(a) Establish a regulatory regime for private recruitment agencies, including a licensing system, recruitment monitoring and inspections to prevent private recruitment agencies from charging excessive fees for their services and from acting as intermediaries for abusive foreign recruiters;

(b) Ensure that private recruitment agencies provide complete information to individuals seeking employment abroad and that they guarantee the effective enjoyment of all agreed employment benefits, in particular salaries;

(c) Adopt a “no placement fees” policy for persons intending to work abroad.

59.The Committee notes that the State party has recently presented the draft law to prevent and combat human trafficking to the National Parliament, and that it has increased its efforts to investigate potential sex trafficking crimes and support civil society in establishing a safe house for women and children who are victims of trafficking. The Committee is, however, concerned that:

(a)Insufficient resources have been dedicated to detecting and eliminating trafficking in persons;

(b)The draft national plan of action to combat human trafficking in Timor-Leste 2010-2013, developed by the Inter-Agency Trafficking Working Group, was never adopted and implemented;

(c)There is a lack of data on the scale of trafficking in the State party and in particular on the number of cases involving women and children, and comprehensive research on the phenomenon of trafficking into the sex industry in the State party has been limited to date;

(d)Victim identification efforts are inadequate;

(e)Law enforcement officials receive limited training on trafficking issues;

(f)Reports indicate that police officials accept bribes from establishments involved in trafficking or from traffickers attempting to cross the border illegally and that police officials have been identified as clients of commercial sex venues investigated for suspected trafficking.

60. The Committee recommends that the State party:

(a) Allocate sufficient resources for the implementation of strategies to detect and eliminate trafficking in persons;

(b) Adopt without delay the Law on Trafficking in Persons and ensure its conformity with international human rights standards and its implementation;

(c) Evaluate the phenomenon of trafficking in persons and compile systematic disaggregated data to better combat trafficking in persons, especially women and children, and bring perpetrators to justice;

(d) Increase its efforts at victim identification and provide protection and assistance to all victims of human trafficking, in particular by providing shelters, medical care, psychosocial and other support to assist in their reintegration into society;

(e) Strengthen training for law enforcement officials, judges, prosecutors, labour inspectors, teachers, health - care workers and the staff of the its embassies and consulates and disseminate more widely information on trafficking in persons and on assistance to victims ;

(f) Investigate and punish all cases of corruption involving police officials.

6.Follow-up and dissemination

Follow-up

61. The Committee requests the State party to include in its second periodic report detailed information on measures taken to follow up on the recommendations contained in the present concluding observations. The Committee recommends that the State party take all appropriate measures to ensure that the recommendations are implemented, including by transmitting them for consideration and action to members of the Government and the P arliament as well as local authorities.

62. The Committee requests the State party to involve civil society organizations in the implementation of the recommendations contained in the present concluding observations.

Follow-up report

63. The Committee requests the State party to provide, within two years, that is , by 9 September 2017, written information on the implementation of the recommendations contained in paragraphs 28, 48, 50 and 60 above.

Dissemination

64. The Committee also requests the State party to disseminate the Convention and the present concluding observations widely, including to public agencies, the judiciary, non-governmental organizations and other members of civil society and the public in general , so as to increase awareness thereof .

7.Technical assistance

65. The Committee recommends that the State party avail itself of international assistance, including technical assistance, to develop a comprehensive programme for the implementation of the above recommendations and the Convention as a whole. The Committee also calls upon the State party to continue its cooperation with specialized agencies and programmes of the United Nations system, including by seeking technical assistance from the Office of the United Nations High Commissioner for Human Rights for capacity - building with respect to reporting.

8.Next periodic report

66. The Committee requests the State party to submit its second periodic report by 9 September 2020 and to include therein information on the implementation of the present concluding observations. Alternatively, the State party may opt to follow the simplified reporting procedure, whereby the Committee draws up and adopts a list of issues that is transmitted to the State party prior to the submission of its next report. The replies of the State party to that list of issues will constitute its report under article 73 of the Convention. In that way, the State party does not submit its report in the traditional manner. This new optional procedure was adopted by the Committee at its fourteenth session in April 2011 (see A/66/48, para. 26).

67. The Committee draws the State party’s attention to its harmonized treaty-specific guidelines (CMW/C/2008/1) and reminds it that periodic reports should be in compliance with the guidelines and not exceed 21,200 words (see General Assembly resolution 68/268). In the event that a report exceeding the established word limit is submitted, the State party will be asked to shorten the report in accordance with the above-mentioned guidelines. If the State party is not in a position to review and resubmit the report, translation of the report for purposes of examination by the treaty body cannot be guaranteed.

68. The Committee requests the State party to ensure the wide participation of all ministries and public bodies in the preparation of its next periodic report and, at the same time, to consult broadly with all stakeholders, including civil society, migrant workers and human rights organizations.

69. The Committee invites the State party to submit an updated common core document, not exceeding 42,400 words, in accordance with the requirements in the harmonized guidelines on reporting under the international human rights treaties, including guidelines on a common core document and treaty-specific documents, approved at the fifth inter - committee meeting of the human rights treaty bodies in June 2006 (see HRI/MC/2006/3 and Corr.1).