ITEM 14. SPECIFIC GROUPS AND INDIVIDUALS

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1 ITEM 14. SPECIFIC GROUPS AND INDIVIDUALS This item covers a quite disparate collection of specific groups and individuals whose full enjoyment of human rights is chronically at risk. The groups identified in the agenda are there for historical reasons rather than because of any regular assessment to determine which groups need to be singled out for special attention. The International Service for Human Rights chose to make its intervention concerning the violation of human rights based on sexual orientation and gender identity under this agenda item. The Commission does not recognise lesbians, gay men, bisexuals and transgendered peoples as groups whose human rights are at risk. They did not appear on the agenda here or elsewhere. 1. Migrant workers A. Report of the Special Rapporteur 1 In its Resolution 1999/44, the Commission created a Special Rapporteur on the human rights of migrants. In 1999, the Commission appointed Ms Gabriela Rodríguez Pizarro (Costa Rica) to this position; in 2002, it extended her mandate for a period of three years. Ms Rodríguez Pizarro submitted, per Resolution 2003/46, a report of her findings of the previous year to the Commission. The report briefly outlines the Special Rapporteur s activities during this period respecting migrant rights in general, and then focuses on the specific situation of migrant domestic workers. The Special Rapporteur describes her investigative methods, points to sections of international law relevant to migrant domestic workers, explains the situation confronting this group, and recommends several policy reforms based on her conclusions. Four addenda supplement her report. The report s first segment charts the Special Rapporteur s efforts during the reporting period to improve the circumstances of migrant workers and to raise awareness of their situation. To this end, the Special Rapporteur continued to collect data on the human rights of migrants from various sources, including governments, NGOs, and "other elements of civil society" (para. 3). She used this information to call countries attention to local migrant rights conditions, hoping to "establish co-operative dialogue" with governments on these issues (para. 4). Addendum 1 to this report summarises these communications to governments and the responses received. The Special Rapporteur also personally monitored migrants human rights by continuing her programme of country visits. As detailed in Addenda 2 and 3, Ms Rodríguez Pizarro visited Spain and Morocco this year. In 2004, the Special Rapporteur plans to visit the Iran, and has also received invitations to visit Belgium, Burkina Faso, Côte d Ivoire, Italy and Peru. On the subject of meetings attended during the reporting period, the Special Rapporteur referred to her report A/58/275 to the General Assembly, which reviews all meetings in which she participated from November 2002 to July The Special Rapporteur further states that she engaged in several consultations between August and November 2003, including a round of discussions on trafficking in persons with governments, NGOs, and other concerned parties in Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua in August The report indicates as well that the Special Rapporteur participated, in co-operation with other NGOs, in a regional consultation in Kuala Lumpur, Malaysia organised by the Co-ordination of Action Research on AIDS and Mobility in Asia (CARAM Asia) "to develop closer collaboration with [her] mandate" (para. 6). The Special Rapporteur also attended the Fifth World Congress for the Pastoral Care of Migrants and Refugees from 17 to 22 November 2003, where she spoke about "challenges for the protection of the human rights of migrants as organised crime becomes global and transnational" (para. 7). 1 E/CN.4/2004/76 and Add. 1 to 4.

2 The second section of the report comprises the Special Rapporteur s analysis of the human rights of migrant domestic workers in particular. She bases her discussion on several sources, including personal observations and information furnished by the International Labour Organisation (ILO) and Organisation of American States (OAS). Additionally, on 6 June 2003, the Special Rapporteur submitted a questionnaire on migrant domestic workers to various countries and organisations. She received replies from several NGOs and trade unions, and from the Governments of Costa Rica, Croatia, Germany, Guatemala, Mauritius, Mexico, Mozambique, Nicaragua, Panama, Poland, Slovakia and Thailand. The questionnaire inquired about official registration of migrant domestic labour, laws concerning domestic labour, and the existence of legislative, administrative, or political safeguards for these workers. The Special Rapporteur begins her analysis by commenting on the broad (and growing) scope of migrant domestic labour issues. She cautions against viewing domestic service exclusively as a source of exploitation. Rather, she states that, under the right conditions, it is a legitimate and potentially satisfying work that has furthermore become "necessary to the development process" (para. 11). Ms Rodríguez Pizarro'ss investigations have revealed extensive migration of domestic workers from countries, including Ecuador, Mexico, Morocco and the Philippines to States such as Canada, Chile, Costa Rica, Japan, Jordan, Lebanon, Spain, the United States of America (USA), the Gulf States and others. The report explains that migrant domestic labour has become critical to the economies of many developed nations. The Special Rapporteur identifies two factors that contribute to the rising need for migrant domestic workers: higher rates of female employment and rising affluence creating greater demand for female migrant domestic workers; and the aging populations of developed countries' increasing needs for care workers for the elderly. These factors have led the Special Rapporteur to focus principally in her report on the situation of female domestic workers residing in the households that employ them. Unfortunately, the report continues, detailed assessments and concrete reforms of problems confronting migrant domestic workers suffer from "the difficulty of quantifying the phenomenon" (para. 15). First and most importantly, many migrant domestic workers have entered their countries of work illegally. The Special Rapporteur also notes that countries from which large numbers of migrant domestic workers emigrate fail to keep "a register of their nationals employed abroad as domestic workers" (para. 15). Furthermore, the laws in countries of destination often do not require applicants for work permits to specify an occupation, or classify domestic service as "temporary work" for which no permit is required. The report then describes how migrant domestic workers are frequently vulnerable to human rights violations. This section of the report delineates migrants rights in the light of international human rights standards, and then turns to violations of those rights and "factors that contribute to their vulnerability" (para. 16). The Special Rapporteur first outlines some international human rights standards common to everyone. She points to both Article 2 of the Universal Declaration of Human Rights and Article 2.1 of the International Covenant on Civil and Political Rights (ICCPR), which provide that people are entitled to the freedoms delineated in each document "without distinction of any kind" (para. 17). Article 4 of the ICCPR, the report continues, establishes essential liberties, including the right to life, humane treatment, and freedom from slavery. The Special Rapporteur also emphasises the fact that these conventions explicitly prohibit discriminatory actions based on national origin. The report then considers documents that create rights more specifically applicable to migrant domestic workers such as the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families. These documents, the Special Rapporteur notes, incorporate rights to "just and favourable conditions of work", "fair wages", "safe and healthy working conditions", "reasonable limitation of working hours", forming and joining "trade unions", and "an adequate standard of living" for workers and their families, "including adequate food, clothing and housing" (para. 22). Moreover, the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families makes it illegal for anyone (other than an authorised governmental official) to confiscate or destroy International Service for Human Rights 2

3 documents such as visas or work permits. It also gives regularly employed workers the right to be informed "of all conditions applicable to their admission and stay" before leaving their home countries or when admitted to their States of employment (para. 23). In spite of these legal protections, the report shows how migrant domestic workers endure a wide variety of human rights abuses. Workers employers frequently subject them to physical and psychological violence. Other workers, the Special Rapporteur continues, have disappeared or died. Racial tensions and mistreatment of hired domestic help intensify when, as is common, the migrant worker does not speak the language of her employer s household. Furthermore, female migrant domestic workers often suffer sexual abuse at the hands of their employers, other members of the household, or co-workers. The Special Rapporteur states that many are even "obliged to remain in the rapist s house and are repeatedly sexually violated". The report then remarks that victims rarely report these assaults to other household members - often the rapist s wife or mother - "for fear of not being believed or in case they might be angry with them". Such abuses contribute to high levels of depression among female migrant domestic workers; the Special Rapporteur accordingly cites reports of "large numbers of suicides" in these populations (para. 27). Employers also frequently violate the privacy rights of their migrant domestic workers. The Special Rapporteur asserts that this harassment, including opening workers correspondence, monitoring their telephone calls and/or searching their rooms, "violates their dignity and strengthens the perception of inferiority and lack of respect" (para. 28). The report then describes the conditions of some female migrant domestic workers as "tantamount to slavery", including up to 19 hours of work per day, round the clock availability, accompaniment for their employers, or having their wages withheld (para. 31). Nor can the women easily leave such situations. The Special Rapporteur observes that because migrant domestic workers rate of pay often falls below even the minimum legal wage, they are forced to work for long periods simply to pay off the massive debts accrued upon leaving their home countries. According to the report, the accommodations of female migrant domestic workers vary as well. While some live in suitable surroundings, others must share a room with the children, other workers, or even sleep "in the kitchen or bathroom". As punishment, the employers sometimes deny them food; in other cases, workers have been "forced to eat the leftovers" of the employer s family meal (para. 33). The Special Rapporteur voiced special concern that employers also confiscate important identity and travel documents of their migrant domestic employees. She argues that this places domestic workers "in a situation of complete dependence" on their employers. Such workers cannot return to their home country without their employer s consent, and some are unable even to leave their places of work because their host countries outlaw being in public without identity documents. Again, the Special Rapporteur stresses that these practices transform domestic work into "a form of slavery" (para. 34). Work visa policies, the report continues, often contribute to the vulnerability of migrant domestic workers. The Special Rapporteur explains that some countries only issue permits to migrant domestic workers "when they are sponsored by a private individual or recruitment agency". Some countries automatically revoke a migrant worker s residence permit if she loses her job with her sponsor, and the worker may then face deportation, whether or not the break in employment sprang from the employer s abuse. A footnote to the report mentions that the Special Rapporteur sent allegations to Israel in this regard. Sponsors must take responsibility for renewing permits in these situations as well, and if a sponsor fails to do so, migrant domestic workers may be determined "irregular" rendering them "even more vulnerable and dependent" on the employer (para. 36). The Special Rapporteur then expressed disapproval that, under virtually any recruitment method, migrant domestic workers must pay at least some of their travel expenses. This often puts migrant domestic workers in debt to family members or forces them to mortgage or sell property to afford the trip. The report explains that these debts in their respective countries of origin exert tremendous pressure on workers, because they International Service for Human Rights 3

4 cannot return home until the debt has been satisfied. The Special Rapporteur notes, however, that some banks and financial institutions in countries such as Ecuador, Peru and Sri Lanka, have started providing credit to migrant domestic workers to combat this phenomenon. Moreover, according to the report, employers often withhold workers wages to meet initial expenses such as residence and work permits. The Special Rapporteur describes that, in extreme cases, some employers "see the worker as an economic investment" and thus "prevent her from escaping by shutting her up in the house". The report adds that this treatment becomes increasingly likely where employers must pay repatriation costs or "the relevant fines" in the event that a migrant domestic worker decides to leave her job (para. 38). The report then notes that recruitment agencies frequently violate migrant domestic workers rights. Although some States monitor agencies that recruit migrant labour with licensing systems and minimum standards, the Special Rapporteur contends that many agencies nonetheless operate without a license. Even some licensed agencies unlawfully exploit workers, charging migrants even when disallowed or at illegal rates, bribing State officials and/or continuing operations "after being fined for illegal recruiting" (para. 39). The Special Rapporteur observes that some traditional countries of origin have responded to these acts with "drastic measures" (para. 40). For example, they may forbid recruitment of female nationals for domestic service elsewhere, or establish a minimum age for agencies to do so. The report also describes how other countries, such the Philippines, have signed agreements with countries of destination in efforts to ensure the safeguarding of migrant domestic workers rights. The report further shows that migrant domestic workers are particularly vulnerable to trafficking. The Special Rapporteur notes however that trafficking "does not imply only sex work"; rather, it can include other types of "enslaving labour" (para. 43). "So-called recruitment agencies", she claims, often lead women into situations of both sexual and nonsexual servitude or forced labour (para. 41). The report describes how agencies entrap workers by supplying inaccurate information about the jobs to be performed. For example, a woman might accept a domestic service job and subsequently be forced into prostitution. The Special Rapporteur observes that other legislation permits the transfer of migrant domestic workers between sponsors "on payment of a sum of money". Under such laws agencies and private agents allegedly have "imported" women using fictitious sponsors and, by deceiving them about their new jobs, trick them into conditions of servitude (para. 45). Moreover, local laws frequently treat victims of trafficking as criminals. Again, the Special Rapporteur stresses that because they "are exploited economically by, are totally dependent on and cannot find a way out of the working relationship", many migrant workers are virtually enslaved (para. 48). To bolster this claim, the Special Rapporteur points to the Convention concerning Forced or Compulsory Labour (ILO Convention C029), which defines forced labour as "involuntary" work performed under "the menace of penalties or adverse consequences". The report indicates that migrant workers endure the threat of deportations as well as physical and psychological violence. Exploitative working conditions and restrictions of freedom of movement, the Special Rapporteur asserts, "increase the workers sense of isolation and powerlessness to such an extent that they are often afraid to leave their jobs". Because violations take place in the context of illegal employment and without monitoring agencies, "it is very difficult for migrant domestic workers to report the abuses they suffer" (para. 49). The Special Rapporteur further observes that some countries of destination, such as Germany, Mexico, and Switzerland combat this phenomenon by conducting trafficking awareness campaigns in co-operation with local NGOs. She also reiterates that monitoring agencies in countries including Pakistan can serve as a check on illegal and abusive recruitment. The report then outlines additional factors contributing to migrant domestic workers vulnerability, including the prevalence of work done without a written contract. Although the report mentions that some countries, like Sri Lanka, require a written contract for a migrant domestic labourer to emigrate, many do not. Even when a State expects a contract in order International Service for Human Rights 4

5 to issue a visa, workers often fail to receive a copy and later find they have been recruited for different jobs. The report also notes that employers frequently draft contracts in a language the worker does not understand. This leads many women to agree to extremely unfavourable conditions, such as having no right to leave the house of employment, or the imposition of fines if the worker returns to country of origin before the lapse of a particular time period. Furthermore, the report observes, countries sometimes do not cover domestic work under labour law or "explicitly exclude" such work from protective wage, working condition, or sexual harassment laws (para. 53). The Special Rapporteur cites in a footnote a communication sent from the Government of Singapore to this end. Other States classify domestic workers as temporary employees. The report explains that in both cases, migrant domestic labour contracts establish no legally binding obligations. Without contracts or other legal safeguards, the Special Rapporteur asserts, migrant domestic workers lack any legal recourse in the event of violations of their rights. The Special Rapporteur then reiterates that migrant workers often do not report maltreatment because of their "precarious and exploitative" conditions (para. 55). Even if a worker reports abuse, authorities frequently fail to pursue the claim. Unless the State takes steps to safeguard these workers, they remain "completely isolated and unprotected", and in short, highly vulnerable to abuse (para. 56). The report then details some existing protections for migrant domestic workers. For example, the report observes that the Embassies of India and the Philippines in Bahrain shelter female migrant domestic workers who have fled abusive employers and who do not know where to turn. The Embassy of the Philippines also covers the legal costs of any ensuing litigation, and the Indian Embassy provides funds for repatriations. Other countries, the Special Rapporteur states, have made efforts to facilitate migrant domestic workers access to reporting mechanisms or to provide legal assistance. Some States also inspect working conditions and instruct migrant domestic workers of their rights. The report adds that NGOs and religious associations provide aid as well, including shelter, assistance in finding a new employer, financial aid for repatriation costs, or legal advice. Moreover, trade unions sometimes advise migrant domestic workers on work-related problems, arrange short-term accommodation, and conduct workshops on labour rights and other topics. Ms Rodríguez Pizarro concludes her analysis by reiterating the importance of domestic workers to developed economies and their current vulnerability to human rights abuses. She then presents her recommendations for States and other relevant organisations based on the findings of the report. Among these recommendations, the Special Rapporteur advocates that States ratify the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, as well as the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime. She also recommends that countries of origin institute training programmes, including language lessons, for migrant domestic workers before their departure. The Special Rapporteur urges States that admit migrant domestic workers under the sponsorship system to "ensure that workers immigrant status does not depend directly on the employment relationship with a given employer", and to allow workers to change employers (para. 77). Recruitment agencies, the Special Rapporteur states, must be monitored by watchdog agencies to ensure that they respect migrant domestic workers rights. She also recommends requiring written contracts for migrant labourers in the language of the workers, giving specific details of the work to be performed. According to the Special Rapporteur, States should outlaw the withholding of passports and other relevant documents, and keep a computerised register of migrant domestic workers. Consulates and embassies should "play an active role" in protecting migrant workers as well, such as providing shelter and offering mediation services for disputes with employers (para. 87). Finally, the Special Rapporteur invites domestic workers to organise themselves and "reminds them that they must be proud of their work" (para. 92). International Service for Human Rights 5

6 B. Communications with States 2 This report details communications sent by the Special Rapporteur to governmental authorities on the subject of migrant workers human rights during the 2003 reporting period and mentions responses provided by governments. These communications consist of letters of allegations, urgent appeals and requests for information. The Special Rapporteur sent some communications jointly with other UN mechanisms and officials, including the Special Rapporteur on the question of torture and the Special Rapporteur on violence against women. The report indicates that the Special Rapporteur transmitted allegations to Australia (1), Belgium (1), China (1), Costa Rica (1), Denmark (1), Egypt (1), France (3), Greece (6), Indonesia (1), Israel (1), Lebanon/Sri Lanka (joint allegation) (1), Mexico (1), Morocco (1), Russian Federation/Tajikstan (joint allegation) (1), Saudi Arabia (1), Spain (2), Switzerland (1), Thailand (5), the United Arab Emirates (2), and the USA (2). These allegations covered subjects including, but not limited to: mistreatment of illegal immigrants in detention centres; laws with discriminatory impacts on migrant domestic workers; poor working conditions; withholding of migrant workers wages; and violence committed against migrant workers. Moreover, with a mind to "continuing the fruitful dialogue" established during her country visit, the Special Rapporteur sent Canada a request for additional information on subjects such as psychological care of migrant workers in detention centres and efforts to keep minors out of detention centres. The Special Rapporteur also submitted urgent appeals on behalf of migrant workers and other parties to Cuba (2), Ecuador (1), Greece (1), Israel (1), Malaysia (1), and Saudi Arabia (1). While many of the above-mentioned governments responded to the Special Rapporteur s messages, others had not by the time of this report. Canada's response to the November 2003 request for additional information is still pending. Neither Indonesia nor Israel has responded to the Special Rapporteur s allegations; the United Arab Emirates has responded to only one of two communications. Lebanon replied to the allegation it received jointly with Sri Lanka, but Sri Lanka has not. Morocco sent the Special Rapporteur information on migration and trafficking laws, but did not respond to her allegations. Likewise, the USA responded to a letter sent by the Special Rapporteur in 2002, but did not divulge information on the two specific cases alleged in C. Mission to Spain 3 In the report E/CN.4/2004/76/Add.2, the Special Rapporteur recounts her investigative country visit to Spain from 15 to 27 September Part I of the report lists the schedule of the visit; Part II discusses relevant laws and migration policies in Spain; Part III describes the specific circumstances of migrant workers investigated by the Special Rapporteur; and Part IV presents her conclusions and a set of recommendations for the Spanish Government and other bodies. The report indicates that the Special Rapporteur travelled to the Spanish cities of Madrid, Barcelona, Cadiz, Tarifa, Algeciras, Ceuta, Melilla, Las Palas de Gran Canaria and Fuerteventura. While in Madrid she met with various governmental officials responsible for migration issues, including the Minister of the Interior, the Minister for Foreign Affairs, the Head of the Foreigners and Immigration Office, the Director-General of the Migration and Social Services Institute within the Ministry of Labour and Social Affairs, the Director of the Unit to Combat Immigration Networks and Documentary Fraud, the Director-General of the Foreigners and Immigration Office, the Director of the Asylum and Refugee Office within the Directorate-General for Foreigners and Migration, and several others. The report also mentions that the Special Rapporteur conferred with academics, official representatives of the various Autonomous Communities, NGOs, the Office of the High Commissioner for Refugees 2 E/CN.4/2004/76/Add.1. 3 E/CN.4/2004/76/Add.2. International Service for Human Rights 6

7 (UNHCR), the Church, and "a number of migrants" (para. 5). Moreover, it lists her visits to detention centres, temporary holding centres for immigrants, border offices, offices of migrants organisations, and places with large migrant communities. The Special Rapporteur initially observed that over the past 20 years, Spain has changed from a country of origin of migrants to one of transit and destination. Migrants to Spain have reportedly increased in number, but still represent a low percentage (around 3,5%) of the Spanish population relative to other European nations. The Special Rapporteur stated that these migrants arrive from Europe (34,98%), Latin America (29,85%), and Africa (27,44%). She also noted that 21,18% come from Morocco alone. Moreover, she mentioned a significant rise in numbers of migrant women and minors in Spain, as well as an "undetermined increase" in illegal migrants (para.8). The report then briefly describes the history of Spanish immigration legislation. The Special Rapporteur remarks that Spain adopted its law on immigration, the Aliens Act, in 1985 and that regulations respecting this act from 1986 "approached immigration as a structural phenomenon and recognised that foreigners had a number of subjective rights" (para. 9). She reports on Spain's 2000 law entitled "Organisation Act on rights and freedoms of foreigners in Spain and their social integration", which was subsequently amended that year. The Spanish Supreme Court also reportedly rescinded some provisions of this law in March The Special Rapporteur furthermore points out Spain's new Aliens Act (2003). The more recent changes in legislation, she explains, followed the formation of migration policy in the European Union (EU) including "measures for the integration of legal residents and measures to combat illegal immigration" (para. 10). The report continues by describing how these laws protect migrants rights. It specifies that Article 3 of the Aliens Act establishes fundamental rights and freedoms for foreigners outlined in Title I of the Spanish Constitution. Article 10.2 of the Constitution, furthermore, provides that provisions relating to those fundamental rights "shall be interpreted in accordance with the Universal Declaration of Human Rights and the international human rights treaties and agreements ratified by Spain" (para. 11). The Special Rapporteur adds, however, that Spain has not yet ratified the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families. She also observes that Title I of the Aliens Act guarantees migrants freedoms "in the same condition" as Spanish citizens, such as the right to education (including compulsory basic education), the right to basic social services, and the right to effective judicial protection and legal assistance. Moreover, the report lists several other rights enjoyed by foreigners legally residing in Spain, including but not limited to: freedom of movement within Spain; participation in municipal elections; rights to demonstrate and to join trade unions; rights of access to social security benefits; right to housing assistance; and the right to free legal assistance in any court. According to the Special Rapporteur, persons found infringing immigration law may be expelled from Spain. This "punitive process" carries with it a ban on entry to the Schengen area for three to ten years (para. 17). She also notes that in the event that Spanish authorities intercept an irregular migrant attempting to enter Spain illegally, they may employ a rapid form of repatriation called "return", which carries no penalties. She further mentions that Organisation Act No.11/2003 modifies Spain s criminal code by replacing custodial sentences of fewer than six years by an expulsion order. NGOs reportedly expressed concerns to the Special Rapporteur in regard to this measure, as they felt that a foreigner accused of immigration offences might be punished by expulsion and a 10-year ban, though he or she might subsequently be acquitted. During the expulsion procedure, the report continues, foreigners stay in detention as a precautionary measure. This custody "is not of a penal character and may not exceed 40 days" (para. 20). The report then lists several violations that may trigger detention procedures, such as failure to renew permits, illegal presence in Spain, or participation in activities prejudicial to public order. The Special Rapporteur also mentions that these decisions can be appealed against through administrative channels. With respect to Spanish immigration laws, the Special Rapporteur appreciated that International Service for Human Rights 7

8 Organisation Act No. 8/2000 conceives its foundation as a "structural development which has converted Spain into a country of destination of migratory flows and, because of its situation, also into a transit route to other States, whose frontier controls on the routes from Spain have been eliminated or substantially reduced" (para. 26). She mentions that various officials averred that Spain bases its migration policy on labour agreements with countries of origin, as well as a policy to control borders and combat trafficking and common European policy. The report further mentions the Minister of the Interior s statement that migration policy simultaneously aims at generosity respecting legal migration and requires orderly migration, because excessive generosity "would create pockets of marginality and would pave the way for the possibility of the exploitation of immigrants" (para. 28). The Special Rapporteur thus praises the Spanish Government s attempts to make migration policy consistent with international human rights agreements, but she further points out some problem areas in current policy that negatively affect migrants rights. In the third section of her report on "Particular Circumstances and General Observations", the Special Rapporteur initially voices concern about the large number of illegal migrants in Spain which, she states, may total as many as 600'000. The principal point of illegal entry to Spain is Barajas International Airport in Madrid, where she notes reports of officials demanding documentation not legally required and arbitrarily refusing entry. Moreover, the report states that the Director-General for Consular Affairs responded to the Special Rapporteur s inquiries by stating, "a consul is able to identify persons simply wishing to visit Spain and persons travelling with the intention of remaining there" (para. 32). The Special Rapporteur further asserts that responsibility for confirming the validity of migrants documents should lie with State officials and not private entities "whose aim is commercial and which do not have the necessary expertise to ensure respect for the rights of migrants and asylum seekers" (para. 33). Ms Rodríguez Pizarro further details the practice of attempting to enter Spain by crossing the Strait of Gibraltar in small boats; she described this phenomenon as "less significant in numbers, but more significant in terms of its serious consequences" (para. 34). The report lists as an optimistic estimate 2'000 deaths in the strait over the past 12 years, and counts 162 fatalities between January and September The Special Rapporteur reportedly learned of work done by the Civil Guard in Andalusia to watch the coastline and rescue these small boats, in addition to an "Integrated External Surveillance System" that will extend throughout Southern Spain by However, she reports that migrants have changed their routes in response to this heightened surveillance and now follow longer, more dangerous paths. She further describes her visit to the Islas de las Palomas reception centre in Tarifa, where she observed the large number of migrants awaiting expulsion and interviewed women awaiting a response to their asylum application. Many of these women, she stated, had lost relatives in their country of origin. The report then cites the failure of the Spanish authorities to carry out deportation orders as a further cause of a high illegal migrant population. This stems, according to the report, from the impossibility of documenting the migrants because either their countries of origin lack consulates in Spain or they falsify their country of origin to evade deportation. The Special Rapporteur states that failure to complete an expulsion order generally results in detention until the time limit for expulsion elapses, after which officials release migrants with orders to leave Spain, which migrants generally do not do. Moreover, she notes that security forces charged with enforcing immigration laws do not always comprehend the difference between return and expulsion. She explains "it is tacitly understood that return applies only to Moroccans, since Morocco does not accept migrants of other nationalities if it cannot be demonstrated that they passed through its territory" (para. 37). Respecting illegal migrants of other nations, the report indicates that many of these individuals undergo expulsion procedures even where the possibility of return exists. Moreover, the report conveys that changes in legislation have caused greater delays in processing permits; the Special Rapporteur thus reportedly observed "long queues of people in immigration offices" (para. 38). She further states that a migrant s case may require between eight months and two International Service for Human Rights 8

9 years to process, and that some lawyers exploit migrants during this process by charging fees to facilitate otherwise free procedures. The report also details a circular procedure whereby some employers refuse to renew migrants contracts absent a valid work permit, but renewal of both work and residence permits require a contract of employment. The Special Rapporteur expresses concern at the obstacles faced by illegal migrants "in regularising their situation" (para. 40). This situation is made worse, she continues, by the fact that many migrants have employed traffickers to complete the journey to Spain. She reports learning that Spain has amended its criminal code to impose heavier penalties for trafficking and smuggling persons and still stricter ones for trafficking in minors or for prostitution. She further describes a special investigation unit created to combat trafficking networks, as well as co-operation to this end between Spanish police, Interpol, and Europol. This section of the report concludes that co-operation by victims is an important part of the fight against trafficking. It notes that laws provide for various protective measures in the event of co-operation by trafficking victims, including non-expulsion for illegal immigrants, granting of residence or work permits, or payment for voluntary return to countries of origin. The Special Rapporteur mentions, however, that fear of reprisals against relatives in countries of origin often prevents this co-operation. According to the report, trafficking networks alter their strategy as law enforcement update their tactics. The Special Rapporteur thus recommends to the Minister of the Interior that Spain take steps to ensure that migrants "do not put their trust in the criminal networks" (para. 43). She further emphasises the need for Spain to co-ordinate policy with countries of origin (and points to the example of Italy s proposal to the EU of creating immigration quotas for countries that co-operate in dismantling trafficking networks). The report then details the Special Rapporteur s observations in Spanish detention centres for foreigners (CEIs). Although this type of detention allegedly does not constitute a punitive measure, the report notes that all detention centres are old prisons. The Special Rapporteur describes her visit to El Matorral, where 846 migrants are detained. At El Matorral, women informed her that her visit marked the first day they had been allowed to leave their rooms. Health assistance reportedly exists in these centres, but is only employed in cases of emergency and obvious illness. The Special Rapporteur criticises the lack of preventive measures for contagious illnesses and lack of any method for monitoring HIV in the centre. She also states that despite laws that provide for informing migrants of judicial decisions affecting them in their own languages, "detained migrants suffer from a serious lack of information, legal assistance and translation and interpretation services" (para. 46). Judges, she adds, often authorise detention of migrants without contacting the migrant or visiting the detention centre. The report further mentions the Special Rapporteur s visit to La Verneda Centre in Barcelona; it reports that she interviewed "an undocumented Nigerian woman" who stated that she had seen her lawyer only once and knew nothing about her situation (para. 48). The Special Rapporteur also relates the existence of similar conditions in the Algeciras detention centre. In Melilla, the report states that lawyers do not adequately represent migrants; in the Barranco Seco centre of Las Palmas, migrants are permitted only three minutes a week to speak with their lawyers. The report also discusses the Special Rapporteur s observations at temporary holding centres for immigrants (CETIs) in Ceuta and Melilla. According to the report, these centres exist to provide food, lodging, medical assistance, and similar aid to illegal immigrants on a temporary basis, although "some migrants remain in these centres indefinitely" (para. 49). The Special Rapporteur related information received from Médecins sans Frontières (MSF) that, prior to her arrival in Ceuta, a large number of illegal migrants who could not be housed in the CETI were living in the street. According to the report, some immigrants entered the CETI one day before her visit, while others were transferred to the CIE. MSF also dismantled the camp they had erected around the CETI. This reportedly exacerbated problems of overcrowding in the centre and administrative backlog of cases. In general, the Special Rapporteur expresses concern "about the structural problem relating to the fact that non- International Service for Human Rights 9

10 expelled migrants remain in a legal limbo which prevents them from regularising their situation and becoming integrated and subjects them to various kinds of pressure" (para. 50). The report then addresses the situation of the more than 6'000 unaccompanied minors in Spain, who are mostly Moroccans aged 15 to 18 (though more and younger ones reportedly arrive from sub-saharan countries and Eastern Europe). It outlines Spain s procedure whereby the Government apprehends an unaccompanied minor, interviews him through municipal juvenile protection services, and decides whether to send him to his home country or keep him in Spain. The Special Rapporteur also notes that, where it cannot conclusively be determined that the individual is a minor, the law requires the use of medical tests to approximate the person s age. Moreover, she states that while the public prosecutor s office recommends presuming that a minor s age is the lowest indicated by the medical test, officials do not always follow this recommendation. She further mentions that the Ministry of Labour and Social Affairs informed her that no cases existed of expulsion of unaccompanied minors, but she received reports to the contrary during her visits to Ceuta and Mellila, and notes that she had already transferred an allegation to Spain on this issue. The report also details problems with family reunification, whereby Spanish officials leave an unaccompanied minor in the hands of the Moroccan authorities without family or social services present. Many of these minors, the report states, return to Spain; some speak of ill treatment by Moroccan police. The Special Rapporteur thus calls for Spanish authorities to ensure that repatriation is carried out with respect for minors best interests. She also disapproves of the Attorney General s instruction No. 3/2003, which requires public prosecutors to push for unaccompanied minors over 16 to return immediately to countries of origin. Minors over 16, the report continues, may receive a temporary residence and work permit that expires upon their reaching majority (though it may be renewed for humanitarian or other reasons). This law also reportedly authorised minors in the care of a Spanish institution, once they have reached the age of 14, to opt for Spanish nationality. Ms Rodríguez Pizarro also describes how, with an aim to correcting its labour shortage, Spain has established a system of employment quotas, whereby it establishes bilateral recruiting agreements with countries of origin such as Bulgaria, Colombia, Ecuador, the Dominican Republic, Morocco, Romania and Poland. However, she notes, this practice causes certain problems; migrants working in Spain lack access to these opportunities after their contract ends and remain in Spain in a situation of illegality. NGOs and Church representatives pointed out to the Special Rapporteur the paradoxical situation in Spain whereby the country at once needs workers and does not permit the regularisation of unemployed irregular migrants who could fill these jobs. The Special Rapporteur further adds that this situation becomes more complicated because migrant workers sometimes accept working conditions "inconsistent with national standards", which can generate hostility (para. 61). Moreover, the report relates that countries often recruit workers for emigration through consular offices, which are structurally and geographically unsuited to this task. The Special Rapporteur voices particular concerns for the agricultural workers in El Ejido, who endure unacceptable working conditions and "frequent attacks by xenophobic groups" (para. 63). She further discusses the situation of female migrants who work primarily in the domestic sector; she states that these women, particularly Moroccan women and illegal workers, remain extremely vulnerable to exploitation. Traffickers, according to the report, deprive some women of their documentation, threaten them or their relatives, force them into prostitution, or place them in "a virtual state of slavery" (para. 65). The Special Rapporteur describes interviewing several Latin American prostitutes in Madrid who reported discrimination and illtreatment at the hands of police; she further notes that in Spain prostitution is neither illegal nor regulated by law. Most illegal migrants, the report continues, remain in large cities such as Barcelona or Madrid in legal situations that prevent their regularisation or their deportation. Many, it claims, owe money to criminal organisations that brought them to their destinations or to relatives who lent them the money for the journey. The Special Rapporteur also voices her disapproval of the disjuncture between official International Service for Human Rights 10

11 policies opposing illegal migration and tacit recognition of extensive illegal immigration. Illegal migrants situations, she continues, may only be legally regularised after five years of residence, leaving migrants "completely unprotected in the face of abuse and exploitation" during that time (para. 70). She also mentions that migrants often encounter difficulties in finding housing because of high rent, the requirement of permanent resident to access Statesubsidised housing or discrimination by owners. The report also points out obstacles to the process of family reunification, including arbitrary visa refusals. The Special Rapporteur further criticises sensationalist media portrayals of migration that falsely associate the phenomenon with crime, without mentioning that most migrants are arrested because of their illegal administrative status alone. The report briefly concludes by acknowledging Spain s efforts to comply with its EU commitments to control migration. It also notes the difficulties preventing real change in the flows of illegal migration and the human rights abuses that migrants suffer in Spain as a result. The Special Rapporteur then makes several recommendations for improving this situation, including but not limited to: ratification of the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families; training of officials to ensure the just and standardised application of immigration laws; provisions of legal assistance and interpreters in all administrative procedures respecting migrants status; participation of NGOs in dialogue with the Government at all levels; increased resources for efficient processing of migrants cases; protections and compensation for victims of trafficking; and a greater UNHCR presence in CETIs and CIEs to safeguard the right to asylum. D. Mission to Morocco 4 This report details the Special Rapporteur's visit to Morocco undertaken from 19 to 31 October The report outlines the Special Rapporteur s activities during her visit, and gives an account of the "legislative, institutional/political and operational" circumstances confronting migrants in Morocco based on the Special Rapporteur s investigations (para. 3). The Special Rapporteur visited Rabat, Casablanca, Khouribga, Tangier, Tetouan, Oujda and Nador during her visit. She reports that while in Rabat she met with various officials including the Minister of Human Rights, the Minister of Justice, the Deputy Minister for Foreign Affairs and Co-operation with responsibility for Moroccan expatriates, the Minister of Labour and Social Affairs, representatives of the Ministry of the Interior, the Director of Consular on Human Rights, the Vice-President of the Supreme Court, the President of the Advisory Council on Human Rights, the Vice-President of the Hassan II Foundation for Moroccan Expatriates and several central government officials. She also reportedly spoke with international NGOs, academic institutions, walis (prefects), local authority representatives, police and security forces representatives, and migrant groups. The Special Rapporteur thanks the Moroccan Government for its invitation and its assistance, as well as the various organisations with whom she met during the mission. The report indicates that Morocco has traditionally been a source of emigration to North America, other Middle Eastern countries and Europe, and that almost 82% of the more than 2,5 million Moroccans living abroad reportedly reside in the EU. The report points out the high rate of irregular migration within this, especially as European countries tighten immigration laws. The report continues to note that approximately one million Moroccans live abroad illegally, often in conditions of exploitation. The Special Rapporteur also mentions that Morocco has recently developed into an important transit country for migration from sub- Saharan Africa to Europe. The report describes migratory flows from the Democratic Republic of the Congo, the Congo, the Great Lakes Region, Sierra Leone, Nigeria, Côte d Ivoire, Guinea-Bissau, Mali, Liberia, Guinea, Senegal and Algeria. The Special Rapporteur further mentions that her visit to Spain yielded information about Morocco s importance in managing 4 E/CN.4/2004/76/Add.3. International Service for Human Rights 11