Migrant Workers and Members of Their Families

Concluding observations on the initial report of Guinea *

1.The Committee considered the initial report of Guinea (CMW/C/GIN/1) at its 294th and 295th meetings (CMW/C/SR.294 and SR.295), held on 1 and 2 September 2015. At its 305th meeting, held on 9 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/GIN/QPR/1), and the additional oral information provided by the high-level delegation, which was headed by Khalifa Gassama Diaby, Minister for Human Rights and Public Liberties, and included, in addition to other representatives of the Ministry of Human Rights and Public Liberties, the President of the National Commission for the Integration and Monitoring of Refugees and a representative of the Permanent Mission of Guinea in Geneva. The Committee also appreciates the frank, open and constructive dialogue held with the delegation.

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

B.Positive aspects

4.The Committee welcomes the State party’s ratification of, or accession to, the following international instruments:

(a)The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in November 2011;

(b)The Convention on the Rights of Persons with Disabilities, in February 2008;

(c)The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, in December 2003.

5.The Committee notes with satisfaction the adoption of the following policy and institutional measures:

(a)The creation of the Ministry responsible for Guineans Abroad in 2011, the Ministry of Human Rights and Public Liberties in 2012, and the office of National Ombudsman in 2011;

(b)The launch of the Migration for Development in Africa (MIDA) and the Transfer of Knowledge through Expatriate Nationals (TOKTEN) programmes in Guinea with the aim of encouraging Guinean expatriate professionals with expertise in growth sectors and university training to temporarily return to the country;

(c)The creation of a one-stop resource for the management of migratory flows at the various land, air, river and sea border crossings;

(d)The adoption, in 2009, of the National Action Plan to Combat Trafficking in Persons and the creation of the Committee to Combat Trafficking in Persons;

(e)The organization of a forum for Guinean expatriates with the aim of establishing a high council of Guineans Abroad as a consultative body of the Ministry responsible for Guineans Abroad.

C.Factors and difficulties impeding the implementation of the Convention

6.The Committee acknowledges the great difficulties that the State party has faced and continues to face owing to political crises and the Ebola epidemic.

D.Principal subjects of concern, suggestions and recommendations

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

7.The Committee welcomes the establishment of the Ministry responsible for Guineans Abroad in 2011, the Ministry of Human Rights and Public Liberties in 2012, and the office of National Ombudsman in 2011. Nevertheless, the Committee is concerned at the fact that these bodies do not have sufficient human and financial resources for the complete fulfilment of their mandate. The Committee also notes the absence of a migration policy and national employment policy in the State party.

8. The Committee recommends that the State party provide the appropriate resources required by the Ministry responsible for Guineans Abroad , the Ministry of Human Rights and Public Liberties , and the National Ombudsman to enable them to discharge their duties effectively . The Committee also encourages the State party to consider the adoption of a migration policy and a national employment policy in accordance with the provisions of the Convention.

9.The Committee notes that the State party has not yet made the declarations provided for in articles 76 and 77 of the Convention, whereby it would recognize the competence of the Committee to receive and consider communications from States parties and individuals regarding violations of the rights enshrined in the Convention.

10. The Committee encourages the State party to consider making the declarations provided for in articles 76 and 77 of the Convention.

11.The Committee notes that the State party has not yet acceded to the following International Labour Organization (ILO) conventions: the Migration for Employment Convention (Revised), 1949 (No. 97); the Private Employment Agencies Convention, 1997 (No. 181); and the Domestic Workers Convention, 2011 (No. 189).

12. The Committee encourages the State party to consider acceding, as soon as possible, to the following ILO Conventions relating to migrant workers: the Migration for Employment Convention (Revised), 1949 (No. 9 7 ); the Private Employment Agencies Convention, 1997 (No. 181); and the Domestic Workers Convention, 2011 (No. 189).

Data collection

13.The Committee appreciates the data provided by the State party, which were based on the 1996 and 2007 censuses. Nevertheless, it deems the statistical data on migratory flows to and from the State party, including those relating to family members of migrant workers, to be inadequate.

14. Recalling that statistical information disaggregated by sex, age and origin is indispensable to understanding the situation of migrant workers in the State party and to assessing the implementation of the Convention, the Committee recommends that the State party create a centralized and comprehensive database covering all aspects of the Convention. It also recommends that the data collected, including on migrant workers in an irregular situation, be disaggregated in order to obtain concrete information about migration policies and the application of the various provisions of the Convention. Where accurate information is not available, the Committee would appreciate receiving reliable data based on studies or estimates.

Training on, and dissemination of, the Convention

15.The Committee welcomes the State party’s plan to strengthen the capacities of the security services with regard to managing migration. Nevertheless, the Committee finds it regrettable that information about the Convention and the rights enshrined therein has not been disseminated among all relevant stakeholders, including public officials working in the field of migration, in particular law enforcement and border personnel, judges, prosecutors, relevant consular officers, local officials and social workers, as well as civil society organizations, universities, the media, migrant workers themselves and members of their families.

16. The Committee recommends that the State party:

(a) Make information about the rights under the Convention available to migrant workers and members of their families;

(b) Carry out capacity-building efforts for all public officials working in the area of migration, in particular law enforcement and border personnel, judges, prosecutors, relevant consular officers, as well as local officials and social workers;

(c) Work with universities, the media, civil society organizations and migrant workers themselves in order to disseminate information about , and promote , the Convention.

2.General principles (arts. 7 and 83)

Non-discrimination

17.The Committee notes with satisfaction the State party’s assertions that there are several remedies available to migrant workers and members of their families in the event of an abuse of power or violation of their rights. It is, however, concerned that no information has been provided about the number of cases and/or proceedings brought by migrant workers or members of their families, including those in an irregular situation.

18. The Committee recommends that the State party ensure that, both in law and in practice, migrant workers and members of their families, including those in an irregular situation, have the same opportunities as nationals of the State party to file complaints and to obtain legal redress in the event that their rights under the Convention have been violated. The Committee also recommends that the State party take measures to inform migrant workers and members of their families, including those in an irregular situation, of the judicial and other remedies available to them in the event of violations of their rights under the Convention.

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

19.While noting the delegation’s statements indicating that Act No. L/94/019/CTRN of 1994 on the conditions of entry and residence for foreign nationals in the Republic of Guinea is not usually applied, the Committee is concerned about:

(a)The lack of clarity in article 70 of that Act, which provides that a foreign national may be barred from leaving Guinean territory for failure to comply with the legislation on the residence of foreigners, or for other reasons that the head of the security department may deem pertinent;

(b)Article 60 of the aforementioned Act, which states that foreign nationals may only leave the Republic of Guinea once they have been released from their legal and contractual obligations.

20.The Committee recommends that the State party ensure that migrant workers and members of their families have the right to leave the State party and to return to, and remain in, their country of origin. The said right may not be subject to any restrictions except those that are provided for by law , are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others , and are consistent with the other rights recognized in the Convention.

21.The Committee notes the delegation’s statements that Act No. L/94/019/CTRN on the conditions of entry and residence for foreign nationals in the Republic of Guinea is not applied and that migrant workers in an irregular situation are not usually subjected to detention. Nevertheless, the Committee remains concerned about:

(a)The criminalization of irregular migration pursuant to article 73 of the Act on the conditions of entry and residence for foreign nationals in the Republic of Guinea, under which foreign nationals remaining in Guinean territory illegally shall be punished with imprisonment for a term of 1 month to 1 year and/or a fine of between 200,000 and 500,000 Guinean francs;

(b) The criminalization of irregular migration under article 75 of the same Act, which provides that a term of imprisonment of between 1 and 5 years and/or a fine of between 700,000 and 5 million Guinean francs shall be imposed on migrants who stay or settle in the Republic of Guinea without the required permit or after a permit has expired;

(c)The absence of accurate, detailed information regarding migrant workers and members of their families in detention;

(d)The poor conditions of detention due to ageing infrastructure and prison overcrowding;

(e)The lack of information on the exceptional circumstances in which the public authorities may legally end the stay of any foreign national, even if that person has entered and resided legally in the Republic of Guinea, and on the criteria for declaring a foreign national undesirable, in accordance with the provisions of article 64 of Act No. L/94/019/CTRN.

22. The Committee recommends that the State party:

(a) Indicate in its next periodic report the number of migrants, disaggregated by age, sex, nationality and/or origin, who are currently being detained for having violated the law on migration, specifying the location, the average length and conditions of detention and providing information on the number of expulsions and the procedures used;

(b) Amend Act No. L/94/019/CTRN to decriminalize irregular migration, since the Committee considers that, in accordance with general comment No. 2 (2013) on the rights of migrant workers in an irregular situation and members of their families, staying in a country in an unauthorized manner or without proper documentation or overstaying a residence permit should not constitute a criminal offence;

(c) Detain migrant workers for immigration offences only in exceptional circumstances and as a last resort, and ensure in all cases that they are held separately from ordinary prisoners, that women are detained separately from men, that conditions of detention are in conformity with international standards and that alternatives to detention are used for children and their families and for unaccompanied minors;

(d) Provide information on the exceptional circumstances in which the authorities can legally end the residence of any foreign national, even if that person has entered and resided legally in the Republic of Guinea, and on the criteria for declaring foreigners undesirable, in accordance with article 64 of Act No. L/94/019/CTRN.

23.While noting the delegation’s statements that migrant workers in an irregular situation are not usually expelled from the State party, the Committee finds regrettable the lack of information on the number of migrants who have been expelled and on the opportunities for migrant workers to seek a stay of a decision of expulsion. It is also concerned about the fact that migrant workers are reportedly unable, in practice, to seek a stay of expulsion, owing to the fact that, under article 40 of Act No. L/94/019/CTRN, they are given just two weeks to leave the country if their applications for residency permits or for renewals of permits are denied.

24. The Committee invites the State party to provide information on the number of migrants who have been the subject of expulsion proceedings. Furthermore, it requests the State party to provide information on the legal provisions and existing measures, except in cases where a final decision has been pronounced by a judicial authority, to enable migrants subject to expulsion proceedings to exercise the right to seek a stay of the decision of expulsion pending consideration of their case by a competent authority, in accordance with article 22, paragraph 4, of the Convention. The Committee also recommends that the State party amend article 40 of Act No. L/94/019/CTRN so as to give migrant workers in an irregular situation sufficient time to appeal against decisions ordering them to leave the country.

25.The Committee finds it regrettable that consular officials undertake only a limited number of visits to places of detention in host countries to enquire about the status of Guinean prisoners.

26. The Committee recommends that the State party:

(a) Facilitate access by Guinean migrant workers residing abroad to consular and diplomatic assistance from the State party, particularly in cases of detention or expulsion;

(b) Ensure that its consular services effectively carry out their duty to protect and promote the rights of Guinean migrant workers and members of their families and, in particular, provide the necessary assistance to any such persons who are deprived of liberty or subject to an expulsion order;

(c) Take the steps necessary to ensure that the consular or diplomatic staff of States of origin, or of a State representing the interests of those States, are systematically informed when one of their nationals is taken into custody in the State party.

27.The Committee notes with satisfaction that the new Labour Code of 2014 no longer contains provisions restricting the right of migrant workers to form or join trade unions. However, it notes that articles 322.4 and 311.6 of the new Labour Code require that a migrant worker must have resided in the State party for three years before being able to perform leadership functions in a trade union or employers’ organization.

28. The Committee recommends that the State party amend articles 322.4 and 311.6 of the new Labour Code to remove the requirement that a migrant worker must reside in the State party for three years before being able to perform leadership functions in a trade union or employers’ organization.

29.The Committee expresses its disappointment at the lack of information on medical care and maternity and family allowances available to migrant workers living in the State party. The Committee also expresses its disappointment at the lack of information on bilateral and multilateral social security agreements aimed at ensuring social protection for migrant workers.

30. The Committee recommends that the State party:

(a) Ensure that all migrant workers and members of their families are able to subscribe to a social security scheme and that they are informed of their rights in that regard;

(b) Conclude bilateral and multilateral social security agreements in order to guarantee the social protection of migrant workers.

31. The Committee notes the lack of information received regarding access, in law and in practice, for migrant workers and members of their families irrespective of their migration status, to the emergency medical care that is required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State party.

32. The Committee recommends that the State party provide information in its next periodic report on the possibility for all migrant workers and members of their families, irrespective of their migration status, to have access, in law and in practice, to the emergency medical care that is required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State party, in accordance with article 28 of the Convention.

33.The Committee notes with satisfaction the delegation’s statements that measures have been taken to inform Guineans of the realities, difficulties and dangers of irregular migration. However, the Committee is concerned about the limited impact of such measures and the lack of information received on steps taken by the State party to inform potential Guinean migrants of the entry and residence requirements in receiving countries.

34. The Committee recommends that the State party step up its efforts to inform potential Guinean migrants and members of their families of the rights granted to them by the Convention and of their rights and obligations in the State of employment, as well as of the dangers of irregular migration.

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

35.The Committee notes that Act No. L/94/019/CTRN on the entry and residence of foreign nationals in the Republic of Guinea authorizes foreigners to stay and move freely in the national territory of the Republic of Guinea. However, it expresses its disappointment at the absence of any details as to why article 51 of the Act prohibits foreigners from going to certain places, and the lack of information on those areas and locations.

36.The Committee recommends that the State party make the provisions of Act No. L/94/019/CTRN clear so as to guarantee that migrant workers and members of their families have the right to liberty of movement in the territory of the State of employment and that this right shall not be subject to any restrictions except those that are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others , and are consistent with the other rights recognized in the Convention.

37.The Committee welcomes the measures taken by the State party to allow Guinean migrant workers residing in other countries to take part in the 2010 presidential elections and the 2013 legislative elections held in the State party. Nevertheless, the Committee remains concerned about the limited information it has received on the real enjoyment of this right, in particular on the participation rate of Guineans residing abroad in those elections and on the opportunities for them to take part in the public affairs of the State party.

38. The Committee invites the State party to provide, in its next report, information on the opportunities for Guineans living abroad to take part in the public affairs of the State party and on their participation rate in presidential and legislative elections. The Committee encourages the State party to take all measures necessary, including targeted information campaigns, to ensure the effective exercise by Guinean migrants of their right to vote. It specifically encourages the State party to take the necessary steps to ensure that Guinean migrant workers living abroad are able to participate in the presidential elections scheduled for October 2015.

39.The Committee notes the lack of detailed information received concerning the possibility for migrant workers to continue receiving, when they leave the territory of the State party, the social benefits and allowances for which they have made contributions, and the absence of information as to whether there is a procedure for the transfer of such funds.

40. The Committee recommends that the State party ensure that migrant workers enjoy equality of treatment with nationals of the State party in relation to access to social services, provided that the requirements for participation in the respective schemes are met, as stipulated by article 43 of the Convention.

41.The Committee notes with interest the plan to establish an incentive system for Guineans living abroad to transfer funds more cost-effectively. It notes, however, the lack of specific information on how this system would work and, in particular, the absence of information about partnerships with financial institutions to facilitate the transfer of earnings and savings of Guinean migrant workers abroad and of migrant workers in the State party.

42. The Committee encourages the State party to:

(a) Provide information on partnerships set up with financial institutions to facilitate the sending of funds to the State party by Guinean migrant workers living abroad;

(b) Step up its efforts to reduce the cost of sending and receiving money transfers;

(c) Make savings more accessible for migrant workers and members of their families.

43.The Committee notes the lack of information received on the measures taken, in law and in practice, to ensure that migrant workers do not lose their authorization of residence by the mere fact of the termination of their remunerated activity prior to the expiration of their work permit.

44. The Committee recommends that the State party ensure that migrant workers in the State party do not lose their authorization of residence by the mere fact of the termination of their remunerated activity prior to the expiration of their work permit or similar authorization.

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

45.The Committee welcomes the existence of cooperation agreements on migration concluded with Algeria, Cuba, Morocco, the United Republic of Tanzania and Tunisia, and the application of the treaty establishing the Economic Community of West African States (ECOWAS), which advocates the free movement of citizens of member States, and their property, within the corresponding economic area in West Africa. It also notes the existence of repatriation agreements with Canada, Spain and Switzerland, and the information to the effect that the State party raised the possibility, in July 2014, of strengthening cooperation with Belgium to address the conditions of residence of Guineans in Belgium and the support provided for their voluntary return. The Committee finds it regrettable, however, that the State party has not signed bilateral or multilateral agreements with other States of employment where large numbers of Guineans live, such as Angola, Gabon and certain European countries, so as to ensure sound, equitable and humane conditions for Guinean migrant workers.

46. The Committee recommends that the State party step up its efforts to sign bilateral and multilateral agreements with countries of destination and transit that would be conducive to regular migration, ensure sound, equitable and humane conditions for Guinean migrants living abroad, provide them with procedural guarantees and ensure that expelled Guinean migrant workers are not subjected to ill-treatment.

47.The Committee is concerned about the limited activities carried out by consular and diplomatic services to protect the rights of Guinean migrant workers and members of their families living abroad, particularly with regard to the issuance of personal identification documents.

48. The Committee recommends that the State party:

(a) Provide, in its next periodic report, information on the activities carried out by consular and diplomatic services to protect the rights of Guinean migrant workers and members of their families;

(b) Provide its consular and diplomatic authorities with the appropriate resources they require for the fulfilment of their duties and ensure that they provide the required information and appropriate assistance to Guinean migrant workers and members of their families living abroad, including those in an irregular situation, in respect of:

(i) The issuance of personal identification documents to Guinean citizens living abroad;

(ii) The necessary authorizations, formalities and arrangements for their departure, travel, arrival, stay, paid employment, exit and return;

(iii) Working and living conditions in the country of employment , and customs, currency, tax and other laws and regulations.

49.The Committee is concerned about the difficulties the State party is facing in facilitating the long-term economic, social and cultural reintegration of Guineans who return to the State party.

50. The Committee recommends that the State party take measures to create appropriate social, economic or other conditions to facilitate the return and long-term reintegration of Guinean migrant workers and members of their families in the State party, as provided for in article 67 of the Convention, paying particular attention to the situation of older persons.

51.While noting with satisfaction the emergency measures taken by the Ministry responsible for Guineans Abroad for the repatriation of Guineans following the political events in the Central African Republic and Libya, the Committee notes with concern the lack of data provided on the number of Guineans still in those countries and wishing to be repatriated.

52. The Committee invites the State party to ensure that all Guineans who are still in the Central African Republic and Libya and who wished to be repatriated are able to gain access to the repatriation measures established by the Ministry responsible for Guineans Abroad .

53.The Committee welcomes the adoption in 2009 of the National Action Plan to Combat Trafficking in Persons, the establishment of the Committee to Combat Trafficking in Persons and the regional agreements concluded in order to prevent and combat human trafficking and smuggling. However, the Committee is concerned about:

(a)The lack of studies, analyses and disaggregated data that would make it possible to assess the extent of trafficking not only to the State party, but also in transit through or from it;

(b)Information received with regard to: (i) Guinean citizens who are victims of trafficking and forced labour in the fields of agriculture, diamond and gold-mining, and domestic work in countries in the region and victims of domestic servitude in European countries, the United States and the Middle East; and (ii) Guinean children who are forced to beg and exploited by marabouts in Mali and Senegal;

(c)Information received indicating the presence in the State party of women and children from the region who are victims of sexual exploitation, forced labour and domestic servitude and Asian women who are forced into prostitution.

54. The Committee recommends that the State party:

(a) Systematically collect data disaggregated by gender, age and origin so as to better combat human trafficking and smuggling;

(b) Step up campaigns on the prevention of trafficking and smuggling of migrant workers , and take appropriate measures to stop the dissemination of misleading information regarding emigration and immigration;

(c) Improve the training of police officers and other law enforcement officials, border guards, judges, prosecutors, labour inspectors, teachers, health-care providers and the State party’s embassy and consular personnel on how to combat human trafficking and smuggling;

(d) Promptly, effectively and impartially investigate, prosecute and punish all acts of trafficking in persons, human smuggling and other related offences, and deal expeditiously with cases filed against traffickers and human smugglers;

(e) Afford protection and assistance to all victims of trafficking, in particular by providing shelters and launching projects aimed at helping them to rebuild their lives;

(f) Increase international, regional and bilateral cooperation to prevent and combat trafficking in persons.

55.The Committee is concerned about Guineans who die while attempting to migrate to Europe.

56. The Committee invites the State party to consider concluding agreements with , or interceding in , the countries of transit and destination of Guinean migrant workers to ensure that those attempting to migrate, especially to Europe, do so in conditions that safeguard their life and physical integrity.

57.The Committee takes note of the State party’s statement that it is planning, once the general population census has been validated, to initiate a regularization procedure for all migrant workers in an irregular situation, taking into account the legal provisions governing the entry and residence of foreign nationals in the Republic of Guinea.

58. The Committee encourages the State party to initiate the procedure under consideration for regularizing the situation of migrant workers in an irregular situation and to ensure that they are informed of these procedures.

6.Follow-up and dissemination

Follow-up

59. 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 those recommendations are implemented, including by transmitting them for consideration and action to members of the Government and the Parliamentary Assembly, as well as local authorities.

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

Follow-up report

61. The Committee invites the State party to provide, within two years, i.e. by 9 September 2017, written information on the implementation of the recommendations contained in paragraphs 42, 48 (b), 52 and 54 above.

Dissemination

62. The Committee likewise 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, so as to increase awareness of the Convention among the judicial, legislative and administrative authorities, as well as civil society and the public in general.

7.Technical assistance

63. The Committee recommends that the State party seek 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 the specialized agencies and programmes of the United Nations system, including by requesting technical support and capacity-building from the Office of the United Nations High Commissioner for Human Rights with regard to the preparation of reports.

8.Next periodic report

64. The Committee invites 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 follow the simplified reporting procedure, whereby the Committee draws up 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).

65. The Committee draws the State party’s attention to its treaty-specific guidelines (CMW/C/2008/1) and reminds it that periodic reports should be in compliance with the provisions of General Assembly resolution 68/268 and should not exceed 21,200 words. 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.

66. 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 (or replies to the list of issues, in the case of the simplified reporting procedure) and, at the same time, to consult broadly with all relevant stakeholders, including civil society, migrant workers’ rights and human rights organizations.

67. The Committee also invites the State party to submit an updated common core document, not exceeding 42,400 words, in accordance with the requirements for the common core document in the harmonized guidelines on reporting under the international human rights treaties (see HRI/GEN/Rev.6, chap. I), approved at the fifth inter-committee meeting of the human rights treaty bodies in June 2006.