Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families
List of issues prior to submission of the second periodic report of Guatemala *
Section I
A.General information
1.Please provide information on the domestic legal framework regarding the Convention, including the existence and scope of bilateral and multilateral agreements pertaining to the rights applicable to migrant workers and members of their families under the Convention that have been concluded with other countries, particularly Belize, Canada, El Salvador, Honduras, Mexico, Nicaragua, the United States of America and any South American States, and indicate how their contents correspond to the protection of migrant workers and members of their families. Please specify how the agreements protect the rights of migrant workers, regardless of their migration status, in transit and in destination countries, especially with respect to detention, repatriation/expulsion, due process guarantees, children’s rights and family reunification procedures, including pursuant to the Plan of the Alliance for Prosperity in the Northern Triangle. Please provide information on any measures that have been taken to strengthen the protection abroad of Guatemalan migrant workers, particularly women, including by concluding, reviewing or amending bilateral and multilateral agreements, as well as with respect to the collection and sharing of relevant data among countries.
2.In the light of the information before the Committee about the absence of a comprehensive, rights-based public policy in the area of migration, please indicate what short- and long-term comprehensive policies and programmes the State party intends to implement and what the expected results of the programmes are to address and prevent irregular migration of Guatemalans, particularly from a rights-based perspective. Please provide information on relevant regional initiatives that are being undertaken in collaboration with other Central American States and with Canada, Mexico and the United States of America in order to avoid forced migration in the region in a coordinated and comprehensive manner. Please include information on efforts to counter the various forms of violence prevailing in the region, poverty, discrimination based on gender, ethnicity, sexual orientation and other grounds and the extreme economic inequality in countries of origin.
3.Please provide information on the Inter-institutional Human Rights Forum and the National System of Follow-up to Recommendations, which are reportedly the government institutions responsible for intergovernmental coordination of the implementation of the Convention in the State party under the umbrella of the Presidential Commission for Coordinating Executive Policy in the Field of Human Rights. Please include information on the available staffing and financial and human resources, as well as monitoring activities, follow-up procedures and coordination mechanisms.
4.Please provide qualitative information and statistical data disaggregated by sex, age, nationality, ethnic origin, educational background and migration status on labour migration movements to and from the State party, including returns, sectors of employment, other labour migration-related issues, and on unaccompanied children and children that remained in Guatemala while one or both parents migrated. Please provide rights-based qualitative and statistical data, or if precise data are not available, studies or estimates, on migrant workers in an irregular situation in the State party and abroad, particularly those working in less regulated sectors such as agriculture and domestic work. In addition, please provide information on measures taken by the State party to establish a coherent and comparable system of data collection on those issues, including measures aimed at making the information public.
5.Please provide information on the State party’s independent mechanism for monitoring the human rights of all migrant workers and members of their families under the Convention, including procedures for reports and follow-up to recommendations. Please also provide information on complaint mechanisms and other services, including helplines, offered by this institution. Please indicate whether the institution conducts visits to detention centres for migrant workers in Guatemala and to detention facilities and shelters for Guatemalan migrants abroad, including children, and whether it monitors repatriation measures of migrant workers in Guatemala and those from countries of employment or transit. In addition, please provide information on the human, technical and financial resources made available to the institution and on awareness-raising activities conducted by the State party among the general public, and migrant workers in particular, on the services offered by the institution, particularly at borders.
6.Please provide information on the steps taken by the State party to promote and publicize the Convention and to increase awareness and understanding of its provisions among the general public, migrant workers and members of their families, employers, teachers, health workers, government officials, including embassy and consular personnel, law enforcement officials, border police and the judiciary, civil society and the media.
7.Please describe the measures taken by the State party, including under the auspices of the Ministry for Foreign Affairs, to promote training programmes on the human rights of migrant workers and members of their families, including on gender, ethnic sensitivity and the rights of the child, for government staff providing legal and consular assistance to nationals of the State party abroad dealing with migration and related issues, including discrimination, workplace abuse and exploitation, arrest, pretrial detention, immigration-related detention, imprisonment, expulsion and repatriation, including the rights that could be affected by the enforcement those measures, such as the right to family life and labour rights.
8.Please provide information on the cooperation and interaction between the State party, civil society organizations and other social partners working on the rights of migrant workers in relation to the implementation and dissemination of the Convention. Please describe the main improvements in the implementation of the Convention since the issuance of the Committee’s concluding observations (CMW/C/GTM/CO/1) and indicate the main developments the State party has planned and programmed for the current governmental term. Please indicate whether and how the representatives of both Guatemalan and Guatemalan diaspora civil society organizations, as well as other stakeholders, will be involved in preparing the replies to the present list of questions.
9.Please provide information on the existence of private employment agencies in the State party that recruit Guatemalan migrant workers, particularly women, to work abroad, especially in Canada, Mexico and the United States of America, or foreign migrant workers to work in Guatemala, especially from El Salvador and Honduras. Please also provide information on the laws, rules and regulations pertaining to private recruitment, in particular on:
(a)The contents of bilateral or multilateral agreements for migrant workers’ programmes with countries of destination and their compliance with the provisions of the Convention;
(b)General and specific laws applicable to private recruitment agencies;
(c)The issuing and renewal of licences to agencies, and the authorities responsible for their oversight;
(d)Measures taken to provide information and training to migrant workers on their rights and obligations, as well as to protect against abusive employment situations;
(e)The role and responsibilities of recruitment agencies and their joint responsibility with employers abroad for claims and liabilities that may arise in connection with the implementation of the employment contract, including wages, disability compensation, repatriation and death, including repatriation of the remains of deceased migrant workers;
(f)Whether recruitment agencies provide life, disability and/or workers’ compensation insurance to migrant workers for work-related injuries and deaths;
(g)Complaints lodged against recruitment agencies, labour inspections conducted by the Inspectorate General for Labour of the Ministry of Labour and Social Security, particularly in the agricultural, textile, fishing, mining, construction, domestic work and food industry sectors, and penalties and sanctions imposed in cases of non-compliance with the law;
(h)Measures taken by the State party to evaluate, audit and sanction private employment agencies and to avoid situations in which such agencies act as intermediaries for abusive foreign recruiters;
(i)Coordination and follow-up by Guatemalan consulates and other diplomatic representations in countries of destination in respect of all migrant workers and members of their families, regardless of their migration status and including those in migrant workers programmes, especially in Canada, Mexico and the United States of America.
B.Information relating to the articles of the Convention
1.General principles
10.Please indicate whether the provisions of the Convention have been directly applied by officials in the administration and if they have been invoked directly before the courts. If so, please provide examples. With reference to the Committee’s previous concluding observations (para. 21), please provide information on:
(a)The judicial and administrative entities competent to examine and decide on complaints by migrant workers and members of their families, regardless of their migration status;
(b)The number and type of complaints examined by such entities in the past five years and their outcome, disaggregated by sex, type of complaint and decision taken;
(c)Whether legal assistance was provided;
(d)Any redress, including compensation, provided to the victims of such violations;
(e)Any measures taken to inform migrant workers and members of their families about the remedies available to them for violations of their rights.
11.Please inform the Committee about the measures taken to disseminate the previous concluding observations, in particular to public agencies, the judiciary, diplomatic and consular officials and non-governmental organizations and other members of civil society, as well as to universities and the general public, and to make them known to Guatemalan migrants abroad and foreign migrant workers in transit or residing in the State party, particularly women. In particular, please provide further information on remedial measures taken by the State party in order to ensure that all public agencies responsible for the follow-up to and implementation of the Committee’s recommendations are aware of the concluding observations, including those government institutions that participate in the National Programme for the Migrant Population. Please also provide information on the coordinating body within the Government responsible for follow-up to and implementation of the concluding observations.
2.Part II of the Convention
Article 7
12.With reference to the previous concluding observations (para. 19), please clarify whether national legislation, in particular the Constitution, the new Migration Code (Decree No. 44-2016), Decree No. 10-2015 adopted as part of the reform of the law on migration, the law on the National Council for Assistance to Guatemalan Migrants, Decree No. 26-2016 amending the Elections and Political Parties Act, the law on sexual violence, exploitation and human trafficking, the Labour Code, the law on social development and Decree No. 5-2012, ensure compliance with the Convention in law and in practice, including through structural, institutional, budgetary and other adjustments, if necessary.
3.Part III of the Convention
Articles 8-15
13.Please provide information on any cases identified in the State party of exploitation of migrant workers and members of their families, both in regular and irregular situations, in particular those working in agriculture, the garment industry, fishing, mining, construction, domestic work or in the food industry. Please also provide information on any cases identified in the State party of domestic servitude, forced labour or sexual exploitation involving migrant workers, including children, especially in the context of sex tourism, and on measures to prevent and combat these phenomena. Please report on any cases of presumed exploitation or slavery of Guatemalans in countries of destination. In addition, please provide information on the measures taken to bring national legislation into compliance with the International Labour Organization (ILO) Forced Labour Convention, 1930 (No. 29) and the ILO Abolition of Forced Labour Convention, 1957 (No. 105).
14.Please provide information on mechanisms for searching for the disappeared and for identifying bodies, for supporting the families of the disappeared in carrying out such searches, including budget allocations for the return of those deceased abroad, for ensuring access for the families of the disappeared to information and justice and for regularly collecting data on disappearances. Please indicate how the State party ensures access by victims to consular assistance and justice, including transnational justice, and reparation measures, including by protection policies, bilateral and regional agreements and initiatives to address this evolving situation.
15.With reference to the previous concluding observations (para. 23), please provide detailed information on the measures taken to investigate allegations of harassment, corruption and abuse of authority by law enforcement officials, including allegations of extortion, non-registration and arbitrary detention of migrant workers and members of their families, including Guatemalan migrants trying to leave the country. Please indicate the number of law enforcement officials who have been investigated, prosecuted and convicted in this regard, and specify the nature of the charges and sentences imposed.
16.Please provide information on the measures, policies and initiatives taken by the State party to protect Guatemalan migrants, particularly unaccompanied children and those in an irregular situation, and prevent them from disappearing, being injured and becoming victims of violent crime while in transit through Guatemala and while travelling to Canada, Mexico and the United States of America.
Articles 16-22
17.Please provide information on border governance measures, particularly with respect to the functions of the National Civil Police, the Guatemalan military and other authorities and to procedures applicable to migrant workers and asylum seekers arriving at the State party’s international borders. Please include information on reception facilities and how the State party processes protection claims to ensure that it acts in accordance with the principle of non-refoulement and the prohibition of arbitrary, collective or automatic expulsion.
18.Please indicate whether the State party has taken measures to ensure the right to liberty, including procedural safeguards, of migrant workers and their families in the context of migration-related administrative procedures, including in respect of entry, residence and expulsion. Please provide relevant disaggregated statistical data. Please indicate how the State party ensures that migration-related detention is applied only as an exceptional measure of last resort. Please provide information, including statistical data, on alternatives to detention for immigration-related matters in the State party. Please indicate whether the State party detains migrant workers and members of their families for immigration related matters. If so, please provide detailed information on the maximum time limit for administrative detention prior to expulsion and on immigration detention centres, conditions of detention for migrant workers and members of their families and efforts to improve those conditions. Please also include information on whether:
(a)Persons detained for immigration reasons are held in separate facilities or together with convicted persons or persons awaiting trial;
(b)Measures are taken to ensure that, without exception, children and their families are not detained, including alternatives to detention that exist in the State party in law and in practice. In cases in which alternatives are not used, please provide information on initiatives aimed at urgently abolishing child migration-related detention and the grounds and conditions of detention, including whether children are separated from adults, and on measures taken to ensure that the best interests of the child are fully taken into account. Please indicate whether the role and responsibilities of institutions in charge of unaccompanied children are clearly defined, and whether their independence and effective oversight are ensured;
(c)Women detained for immigration reasons are held separately from men who are not family members or partners, and are supervised by female personnel;
(d)Family-friendly facilities are provided for families where possible and appropriate;
(e)Victims of human trafficking, including witnesses, are identified and provided with protection;
(f)There are procedures in place to determine the best interests of the child in human rights-based return and reintegration procedures, starting abroad with consular assistance when a recommendation is made concerning the place to which the child should be returned, with the possibility for the child to be heard and avail him or herself of legal assistance and/or a guardian.
Article 23
19.Please provide detailed information on the policies and practices of the State party’s embassies, consulates, consular agencies and honorary consulates in assisting and protecting the rights and due process guarantees, including legal assistance, of Guatemalan migrant workers and members of their families, including those in an irregular situation, particularly in cases of abuse, arrest, detention, imprisonment, while awaiting expulsion in transit and destination countries, or when conditions of employment in the destination country, particularly in Canada, Mexico and the United States of America, are not met. Please include details of consular protection and (legal) assistance policies and programmes, for example ensuring the return of belongings obtained abroad by migrant workers and members of their families, or the issuance of personal identification documents for Guatemalan migrant workers and members of their families. In particular, please provide information on the impact of the recent initiative of the Ministry of Foreign Affairs of Guatemala to reinforce the network of consular representatives abroad. Please include details of measures being taken, such as providing training for consular staff, hiring officials specialized in vulnerability and opening new consular representations, including with the aim of disseminating information on the Convention and rights of all migrant workers and members of their families.
20.Please indicate whether migrant workers and members of their families in the State party have effective access to the protection and assistance of the consular or diplomatic authorities of their State of origin, particularly in cases of arrest, detention or expulsion. Please also indicate how migrant workers who are deprived of their liberty are informed of this right, in particular in cases of expulsion. Please indicate whether assistance in native languages is available or coordinated for indigenous Guatemalans.
Articles 25-30
21.Please indicate what legal and labour protection and enforcement mechanisms are in place to ensure that migrant workers, in both regular and irregular situations, including women, especially in sectors employing low-qualified workers, enjoy treatment that is no less favourable than that given to nationals in respect of remuneration and conditions of work, in full compliance with the ILO Equal Remuneration Convention, 1951 (No. 100). Please include treatment in respect of protection from dismissal, unemployment benefits, access to public work schemes for combating unemployment and access to alternative employment in the event of loss of work or termination of other remunerated activity. Please also include information on measures aimed at promoting the rights of Guatemalan migrant workers abroad, particularly women, including with respect to leadership, empowerment and initiatives of associations of migrant women.
22.With reference to the previous concluding observations (para. 33), please provide information on the measures taken by the State party to ensure, in law and in practice, that all migrant workers and members of their families, including those in an irregular situation, have adequate access to health-care services, including urgent medical care. Please provide differentiated information for women, children, migrant workers in situations of sexual exploitation, domestic workers, lesbian, gay, bisexual, transgender and intersex persons and Guatemalan migrant workers and members of their families who have been deported, including those with disabilities. Please indicate what actions, including awareness-raising, the Guatemalan Social Security Institute has taken to incorporate women migrant domestic workers into the Special Protection Programme for Domestic Workers, and how many women migrant domestic workers have enrolled in the programme.
23.With reference to the previous concluding observations (para. 33), please provide information on the measures taken to ensure that the children of migrant workers have full access to education, regardless of their migration status. Please include information on firewalls to ensure that schools are not obliged to report the immigration status of children to the authorities, and on the documentation requested from the children of migrant workers in order to register or enrol in educational institutions.
24.Please provide information on the measures taken by the State party to ensure the right of children of Guatemalan migrant workers abroad, including children of migrant workers who are undocumented or in an irregular situation, to be registered at birth and to have their nationality of origin recognized in law and in practice. Please also provide information on the measures taken to ensure the birth registration of foreign migrant children in the State party, including statistics about Guatemalans born and registered abroad.
4.Part IV of the Convention
Article 37
25.Please provide information on pre-departure programmes for the State party’s nationals considering emigration, including information on their rights and obligations in the State of employment. Please indicate which government institution is responsible for providing such information and whether any coordinated policies, programmes or legislation have been developed and adequately funded to ensure transparency and accountability in this process. Please provide information on the mechanisms for follow-up with respect to migrants in programmes abroad, and the commitments of partner organizations in Guatemala and destination countries, be they recruitment agencies or not.
Articles 39-40
26.With reference to the previous concluding observations (para. 35), please provide information on existing mechanisms that guarantee the rights of migrant workers and members of their families to freedom of movement in the territory of the State party and freedom to choose their residence there, as well as the right to form associations and trade unions in accordance with articles 39 and 40 of the Convention.
5.Part VI of the Convention
Article 64
27.Please provide information on the short-, medium- and long-term strategies at the national and local levels and the measures taken, including consultations and cooperation with other States, to promote sound, equitable and humane conditions for the international migration of migrant workers and members of their families, such us the coordination of intraregional migration during harvest times and of commerce and trade at borders. Please provide information on the channels and mechanisms established with civil society organizations to recalibrate migratory policies and programmes to that end.
28.Please describe the measures taken by the State party to prevent irregular migration of nationals of the State party, particularly women and unaccompanied children, including coordinated plans, policies and programmes aimed at enhancing legal migration channels. The Committee would welcome that information in the light of reports it has received indicating that, since the implementation by Mexico of the 2014 Southern Border Plan, increasing numbers of both Guatemalan and non-national migrant workers and members of their families who are in transit have embarked on arduous and dangerous journeys by boat to cross the border between Guatemala and Mexico. Please clarify why the border control strategies applied by the State party include military and private military security companies.
29.Please provide information on addressing the root causes of irregular migration, such as violence (including social violence, gender-based violence, violence against children, institutional violence and gang violence), insecurity, impunity, corruption, organized crime, poverty, unemployment, income inequality, discrimination, trafficking in persons, the weakening of family relationships and low investment in health and education. In particular, please provide information on the results of efforts undertaken by the State party to reduce poverty and unemployment, and the impact of national programmes such as the National Competitiveness Programme, including on the level of irregular migration from Guatemala. Please include information on how such measures have been mainstreamed into overall migration policies and programmes and whether there has been a reduction in the number of irregular migrants as a result of such measures.
Article 67
30.Please provide information on cooperation programmes that are in place between the State party and relevant States of employment for the voluntary return to Guatemala of migrant workers and members of their families when they decide to return or when they are in the State of employment in an irregular situation. Please include relevant statistics and data. Please provide information on the measures taken both at the national and the local levels to facilitate the return of and to assist returning migrant workers and members of their families in resettlement and reintegration into the economic and social life of the State party.
31.Please describe the specific measures in place to protect women migrants, both Guatemalans and foreign nationals, who are in transit to the United States of America from all types of crime, particularly all forms of violence and sexual abuse, and to provide victims with reparation. Please provide quantitative and qualitative data on the results achieved, challenges faced and successes achieved through those measures, taking into account the guidelines set out by the Committee on the Elimination of Discrimination against Women in its general recommendation No. 26 (2008) on women migrant workers.
32.Please provide information on the measures taken to promote conditions that facilitate the resettlement and reintegration of migrant children who are Guatemalan nationals upon their return to the State party, with a view to finding durable solutions, including for children who are initially placed in shelters. Please describe the ways in which those measures respect the best interest of the child. In particular, please indicate what urgent measures the State party has taken to address the allegations of serious abuse in the Virgen de la Asunción safe home for girls, where 40 girls were killed in a fire in March 2017. Please include details of the investigations that have been carried out and their results, whether any perpetrators have been brought to justice, whether compensation has been provided to the victims and their family members, and whether steps have been taken to prevent the recurrence of such tragedies in Guatemala. Please include information on the measures that have been taken in the State party aimed at protecting children who migrated as a result of the high level of violence and homicides and other root causes. Please also include information on national and regional programmes aimed at addressing the root causes of irregular child migration and the protection of their rights in transit and destination countries.
33.Please provide information on the measures taken by the State party to ensure the rights of migrant children and their protection from any kind of violence or exploitation, particularly those who are unaccompanied or in an irregular situation, in or transiting through the State party, including the allocation of sufficient resources for the effective enforcement of labour laws and the protection of children from economic exploitation. Please provide information on the steps taken to protect children from hazardous work, including through the implementation of the ILO Worst Forms of Child Labour Convention, 1999 (No. 182) and by strengthening the labour inspection system.
Article 68
34.Please provide information on the National Programme for the Migrant Population run by the Ministry for Public Health and Social Assistance for the migrant population and their families, including statistics on care and follow-up cases, disaggregated by sex, age, nationality and type of care needed, particularly with respect to unaccompanied migrant children and adolescents. Please include details of the available resources, monitoring and follow-up mechanisms, and strategic and intervention planning. Please provide the same details for the Commission for the Comprehensive Care of Migrant Children and Adolescents, which has the mandate to coordinate, evaluate, promote and follow up on institutional and inter-institutional strategies, plans and programmes related to migrant children and adolescents for their protection and comprehensive care; the Regional Ad Hoc Group on Migrant Children created at the initiative of the State party with the aim of promoting the exchange of experiences and good practices on consular protection for migrant children, training for government officials and civil society; the Migrant Children Programme of the Social Welfare Secretariat; and other relevant institutions, mechanisms, initiatives and programmes in the State party.
35.With reference to the previous concluding observations (para. 45), please provide information on the measures taken, including through international, regional and bilateral cooperation with countries of origin, transit and destination, and corresponding resources, including human and financial resources, allocated by the State party, to prevent and combat trafficking in persons, particularly women and children. Please indicate the efforts made to adopt laws and policies to ensure the implementation of legislation to combat human trafficking. In particular, please provide details on:
(a)Programmes to prevent trafficking in persons and to effectively protect victims of trafficking, as well as to ensure their access to justice and legal remedies;
(b)Efforts made to effectively and impartially investigate, prosecute and punish all acts of trafficking in persons, and the number of judgments rendered in connection with this crime, including information on the number of convictions, type of sentences and reparations provided to the victims;
(c)The establishment of protection shelters and programmes to assist victims in rebuilding their lives, including assistance for their physical, psychological and social recovery;
(d)Measures taken to provide adequate training and capacity-building for law enforcement officials, judges, prosecutors, labour inspectors, service providers, teachers, embassy and consular personnel and other relevant professionals in the State party;
(e)The annual budget dedicated to detecting and eliminating trafficking in persons and providing protection to victims of trafficking;
(f)The steps taken to strengthen data collection on victims of trafficking;
(g)Whether victims of trafficking may be granted temporary or permanent resident permits.
36.With reference to the previous concluding observations (para. 46), please explain what steps the State party has taken to prevent and suppress the smuggling of migrants by organized criminal groups and to adopt specific legislation and policies on this matter, in accordance with the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime of 2000.
Article 69
37.With reference to the previous concluding observations (para. 29), please provide information on efforts undertaken by the State party to generate a comprehensive immigration regularization programme for the temporary or indefinite stay of foreign migrant workers and members of their families present in its territory. Please also provide information on successful experiences and models of support for the regularization of Guatemalan migrant workers and members of their families abroad.
Section II
38.The Committee invites the State party to provide information (in no more than three pages) regarding the protection of migrant workers and members of their families with respect to the following:
(a)Bills or laws, and their respective regulations;
(b)Institutions (and their mandates) or institutional reforms;
(c)Policies, programmes and action plans covering migration, and their scope and financing;
(d)Recent ratifications of human rights instruments and other relevant instruments, including the ILO Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), the ILO Domestic Workers Convention, 2011 (No. 189), and the Protocol of 2014 to the Forced Labour Convention, 1930;
(e)Recent comprehensive studies on the situation of migrant workers and members of their families.
Section III
Data, official estimates, statistics and other information, if available
39.Please provide, if available, updated disaggregated statistical data and qualitative information for the past three years on:
(a)The volume and nature of migratory movements to and from the State party since the Convention entered into force in the State party;
(b)Migrant workers and members of their families who have been expelled from the State party;
(c)The number of non-accompanied migrant children or migrant children separated from their parents in the State party;
(d)Remittances received from nationals of the State party working abroad;
(e)Reported cases of trafficking in and smuggling of migrants, investigations, prosecutions and sentences imposed on perpetrators (disaggregated by sex, age, nationality and purpose of trafficking);
(f)Legal assistance services provided to migrant workers and members of their families in the State party and to nationals working abroad or in transit through third States.
40.Please provide any additional information on any important developments and measures to implement the Convention relating to the protection of the rights of migrant workers and members of their families that are considered a priority.
41.Please submit an updated core document in line with the harmonized guidelines on reporting (HRI/GEN/2/Rev.6). In accordance with General Assembly resolution 68/268, paragraph 16, the common core document should not exceed 42,400 words.
42.The Committee may take up all aspects of the rights of migrant workers and members of their families in the Convention during the dialogue with the State party.