Chapter 17: The rights of migrants and their families
Ngā tika ō te hunga manene, e mahi ana, me ō ratou whanau
States Parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention without distinction of any kind such as to sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status.
(International Convention on the Protection of the Rights
of All Migrant Workers and Members of their Families, Article 17) 
1. Introduction — Timatatanga
The term 'migrant worker' is used internationally to refer to 'a person who is to be engaged, is engaged, or has been engaged in a remunerated activity in a State of which he or she is not a national'. It includes people who have been granted temporary work permits or permanent residence, and people who have entered or remained in a country without a permit ('illegal immigrants' or 'overstayers'). In essence, it includes the majority of those people in any given country who have not acquired citizenship by birth, descent or grant of citizenship.
People seek to migrate for a wide variety of reasons, including overseas experience, lifestyle, environment, opportunities for career advancement or to join family. Among the most common pressures worldwide are poverty, the inability to produce enough to support oneself or one's family, and the experience of war, civil strife, insecurity or persecution arising from discrimination on the grounds of race, ethnic origin, colour, religion, language or political opinion.
There is no human right to immigration as such, but migrant workers have all the human rights contained in the major international human rights treaties. Some human rights take on a particular significance in the process of labour migration, including freedom from discrimination; freedom of thought, religion and belief; freedom of expression and association; the right to privacy, property and security of the person; the right to family reunification; freedom from arbitrary arrest, detention and expulsion; the right to language and culture; and the rights to justice, work and health.
2. International context — Ki ngā kaupapa o te ao
The International Covenants on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR) apply to migrant workers and their families as they do to everyone else. The same is true of the Conventions on the Elimination of Racial Discrimination (CERD), the Convention on the Elimination of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (UNCROC).
CERD has a particular relevance to migrant workers, because many migrants work in countries where they constitute a racial or ethnic minority. Their consequent visibility and more vulnerable status often make them a target of xenophobia or racial discrimination.
The early United Nations Conventions do not make specific reference to migrant workers, and international regulation of migrant labour has largely been addressed through the International Labour Organisation (ILO). The two key ILO conventions are No 97 on Migration for Employment (1949) and No 143 on Migrant Workers (Supplementary Provisions) (1975).
The ILO Migration for Employment Convention, 1949 (No. 97) provides the foundations for equal treatment between nationals and regular migrants in areas such as recruitment procedures, living and working conditions, access to justice, tax and social security regulations. It sets out details for contract conditions and the participation of migrants in job training or promotion, and deals with provisions for family reunification and appeals against unjustified termination of employment or expulsion, as well as other measures to regulate the entire migration process.
The ILO Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) was adopted at a time when concern about irregular migration (including smuggling and trafficking) was growing. It sets out requirements for respecting the rights of migrants with an irregular status, while providing for measures to end clandestine trafficking and to penalise employers of irregular migrants.
Continuing international concern about the rights of migrant workers led to the adoption by the United Nations of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (MWC) in 1990. The Convention is based on concepts and language drawn from the two ILO Conventions. It extends considerably the legal framework for migration, the treatment of migrants and the prevention of exploitation and irregular migration. It entered into force on 1 July 2003. However, only 22 countries have so far ratified it, none of which have large numbers of inward rather than outward migrants. No industrialised host countries have ratified it.
The renewed focus on migrant workers was a response to the trend towards the globalisation of labour as well as trade, services and information. The ILO has commented that globalisation is having a profound effect on human displacement and mobility, as a result of persistent poverty, growing unemployment, loss of trading patterns and what has been termed a growing crisis of economic security in developing countries. At the same time, demand for migrant labour in developed countries (Taran,
2003) is likely to grow:
Changing economic and demographic trends are combining to increase the demand for foreign labour in most industrialised countries. On the one hand, demographic trends are translating into aging populations, older median age workforces, more retired people dependent on fewer actively employed, and fewer entries into labour markets. On the other hand, the growth of dual labour markets under globalisation is expanding the number of precarious jobs which national workers are reluctant to take. Small and medium sized companies and labour-intensive economic sectors do not have the option of relocating operations abroad. Responses include downgrading of manufacturing processes, deregulation, and flexibilisation of employment, with increased emphasis on cost-cutting measures and subcontracting. Resulting employment needs are met only partially or not at all by available or unemployed national workers, for reasons of minimal pay, degrading and dangerous conditions, and low status.
There has been considerable controversy over the promotion, ratification and implementation of the ILO conventions and the 1990 Migrant Workers Convention, highlighting the tension between a human rights approach to social protection and the increasingly deregulated globalised use of labour. Although there has been relatively widespread ratification of Convention 97, there has been less ratification of Convention 143.
The ILO has identified seven essential elements of national and regional policy on migration that every State, its social partners and civil society need to address (Taran,
2002). These are:
- a human rights standards-based foundation for comprehensive national migration policies and practices, to ensure social legitimacy and accountability
- an informed and transparent labour migration admission system, designed to respond to measured, legitimate needs and taking into account domestic labour concerns
- enforcement of minimum national employment conditions' norms in all sectors of activity, to prevent exploitation of migrants
- challenging discrimination and xenophobia, as major issues affecting migrant workers
- institutional mechanisms and practical measures to ensure coordination of Government and social partners, supervision of recruitment and administration of admissions, recognition of qualifications, and provision of health and social services and other aspects of managing labour migration
- development aid, trade and investment policies to redress economic, trade and development disadvantages
- possibilities for labour mobility, especially in regional integration, to provide optimal allocation of labour in larger labour markets, including freedom of movement within regional economic cooperation areas (p.2).
There is a fundamental tension underlying the issue of immigration policy between the human rights of migrants and the largely economic reasons that prompt countries to attract and select them for their labour. International human rights standards provide a tool to manage this tension in a principled and transparent manner.
The ILO estimates that at the beginning of the 21 st century there are 175
million people living outside their countries of origin, of whom 120 million
are migrant workers and their families. As of 1995 there were 20 million in
Africa, 30 million in Europe, 18 million in North America, 12 million in Central
and South America, 9 million in the Middle East and 7 million in South and
East Asia (Taran,
3. New Zealand context — Ki ngā kaupapa o Aotearoa
Civil and political rights are guaranteed under the New Zealand Bill of Rights Act 1990 (BoRA), and generally apply equally to citizens and non-citizens.
The Human Rights Act 1993 deals with unlawful discrimination on the grounds of race, colour, and national or ethnic origins, the incitement of racial disharmony and racial harassment. Section 149D of the Immigration Act 1987, which governs immigration in New Zealand, prevents the Human Rights Commission from investigating alleged discrimination in the Immigration Act and under policy developed pursuant to that Act. Only complaints of alleged discrimination in New Zealand Immigration Service (NZIS) service delivery can be accepted. This is based on the argument that immigration is, by its nature, discriminatory. In 2004-2005, NZIS is reviewing aspects of the Immigration Act.
NZIS, which is part of the Department of Labour, operates under the Immigration Act 1987, issuing visas and permits for people coming here to visit, work, study, or live. The NZIS provides policy advice to Government and is responsible for ensuring compliance with New Zealand 's immigration laws. It is also responsible for the refugee programme, and has a role in helping migrants and refugees to resettle in New Zealand.
Australian citizens are exempt by regulation from the requirement to hold a residence permit, as are persons covered by diplomatic privileges and immunity and certain other classes of person (s. 11 Immigration Act). Australian residents do not have to obtain a visa, but are generally issued with a residence permit on arrival. All other non-New Zealand citizens are required to have a visa or permit to reside in New Zealand (for these purposes, the people of Niue, Tokelau and the Cook Islands are regarded as New Zealand citizens). There are a number of categories of visas and permits, namely resident, returning resident, visitor, worker, student, and limited purpose. Categories under which people may apply for residence visas and permits are:
- the skilled migrant category, in which applicants are able to lodge an expression of interest and may then be invited to apply if they have the required number of points over a range of criteria, and meet required standards of health, character and English language competency
- the business category, which includes subcategories of investors, entrepreneurs, long term business and employees of relocating businesses
- the family category for people in a stable relationship with a New Zealand citizen or resident, or who have immediate family members in New Zealand, or who are the dependent children of New Zealand citizens or residents
- the family quota category, for wider family members sponsored by a New Zealand citizen or resident and who do not qualify for residence under any other category
- the refugee family quota category, for families of refugees who do not fit into any other category
- special residence categories, comprising the Samoan quota scheme (up to 1,100 people per year), the Pacific access category (250 from Tonga, 250 from Fiji, 75 from Tuvalu, and 75 from Kiribati ), and Pitcairn Islanders.
In 2002-2003, there was a total of 48,538 approvals. Of these, 62 percent were in the skilled and business categories, 30.5 percent in the family categories, and 6.8 percent in the international/humanitarian categories. The new skilled migrant category was introduced with effect from 1 December 2003.
The NZIS's operational policy is set out in the NZIS Operational Manual, which visa and permit branches follow in the administration of Government policy. The Manual is subject to regular adjustment to reflect changes in policy.
The Citizenship Act 1977 deals with New Zealand citizenship. Citizenship can be acquired by birth, descent or grant. Non-New Zealand citizens are defined as 'aliens' for the purposes of the Act, with the exception of Commonwealth citizens (British subjects), British Protected Persons, and Irish citizens. To be granted citizenship an applicant is generally required to have been ordinarily resident in New Zealand for a period of three years (this does not cover illegal residence), be entitled under the Immigration Act 1987 to be in New Zealand indefinitely, be of good character, have a sufficient knowledge of the responsibilities and privileges attaching to New Zealand citizenship, have sufficient knowledge of the English language, and intend to continue to reside in New Zealand or work for the Government, for an international organisation of which New Zealand is a member, or for a New Zealand employer overseas. The residential qualification may be waived for citizens of Niue, Tokelau and the Cook Islands (who enjoy New Zealand citizenship rights). The Citizenship Act 1977 is administered by the Department of Internal Affairs.