Migration and Free Movement Issues for Business Barbados June 23rd, 2015
Established in 1973 with the signing of the Treaty of Chaguaramas Original Treaty established the Caribbean Community and a Common Market for Goods 2
Revision of Treaty of Chaguramas to include CSME was necessary and signed in 2001 Revised Treaty establishes CARICOM, including the CSME In 2006 the Declaration of Single Market Readiness was signed 3
Article 6 of the Revised Treaty highlights the objectives of the Community, of which the more critical objectives are : full use of labour full exploitation of the other factors of production increased competitiveness improved standards of living and work sustained economic development
A rule based environment has been created by the Revised Treaty of Chaguaramas. Key principles are : Non-discrimination (Article 7) MostFavoredNationTreatment(Article 8) General Undertaking on Implementation (Article 9)
ThereisnodoubtthatSuriname(read:allMemberStates) came under a legal obligation scrupulously to observe all their treaty obligations from 1st January 2006, the date of the entry into force of the Revised Treaty. From that date forward, the rule of pacta sunt servanda, enshrined in Article 26 of the Vienna Convention on the Law of Treaties 1969, became operative: every treaty in force is binding upon the parties to it and must be performed by them in good faith. All Member States are simultaneously bound by Article 9 of the Revised Treaty to take all appropriate measures to ensure the carrying out of its treaty obligations.
Free Movement of Goods (CET, Community Origin) Right of Establishment Free Movement of Capital Free Movement of Persons Free Movement of Services
Article 32 is contained in Chapter Three of the RTC. The definition of national in Article 32 is expressly reserved for the purposes of this Chapter. Chapter Three peculiarly concerns itself with issues critical for the success of an integration regime, namely, the right of establishment, the movement of labour, the right to move capital and the right to provide services. These are fundamental core rights given by the RTC and must be seen in the context of the resolve of the Contracting Parties to establish conditions which would facilitate access by their nationals to the collective resources of the Region on a non-discriminatory basis
Firstly, as indicated earlier, Article 240(1) RTC does not require that Member States enact a binding Community decision into domestic law in order to create at the Community level legally binding rights and obligations. The States are merely required to give domestic effect to such a decision subject to their own relevant constitutional procedures.
Secondly, in the absence of any indication to the contrary a valid decision of a Community Organ or Body taken in fulfilment or furtherance of the RTC or to achieve the objectives of the Community is immediately binding at the Community level. As a matter of good practice the Community in its decision-making should stipulate a fixed time frame within which such decisions should be implemented after which the decision enters into force with the result that a delinquent State is automatically in violation of the RTC and, in principle, liable for the consequences of such a violation.
Movement of Community Nationals : Member States commit themselves to the goal of free movement of their nationals within the Community. Other Articles also ensures the Free Movement of CARICOM Nationals
Free movement of skills (Wage Earners) Free movement of Persons Free movement to undertake economic activities Facilitation of travel Free movement to exercise the right of establishment/ commercial presence (Non Wage Earners) Free movement to exercise the right to provide services on a temporary basis (Non Wage Earners)
Graduates & equivalent qualifications Artistes Musicians Media workers Sportspersons Teachers Nurses Holders of Associate degrees & equivalent qualifications Artisans who have received a CVQ Household domestics with a CVQ or equivalent qualification
Key with respect to Free Movement of Skilled Nationals : Only natural persons can exercise this right Movement is meant to be long term Persons looking to be employed (wage earners) must move under this right Currently there are ten eligible categories
Grants eligible categories of CARICOM Nationals : The right to enter other Member States to work The right to enter to seek employment The right to engage in gainful employment without the need to obtain a work permit
Article 32 (3) defines the Right of Establishment as the right to: a) Engage in any non-wage-earning activities of a commercial, industrial, agricultural, professional or artisanal nature b) Create and manage economic enterprises referred to under this article.
This right has been granted to : CARICOM Nationals, namely natural and juridical persons, who are engaged in nonwage earning activities or creating and managing economic enterprises.
According to Article 36 (4) Services means services provided against remuneration other than wages in any approved sector and the provision of service means the supply of services via the following modes: Mode 1 From the territory of one member state into the territory of another Member State (Cross Border Supply) Mode 2 In the territory of one Member State to the service consumer of another Member State (Consumption Abroad)
Mode 3 By a service supplier of one Member State through commercial presence in the territory of another Member State (Commercial Presence) Mode 4 By a service supplier of one Member Statethroughthepresenceofnaturalpersons in the territory of another Member State (Movement of Natural Persons)
Non-Wage Earners have the right to bring along Managerial, Supervisory and Technical Staff Managers, Supervisors and Technical Staff can tmoveintheirownright,since the right was granted to the non-wage earner (the employer)
All OECS Nationals can move in the Economic Union to live and work OECS Member States are required to grant OECS nationals an indefinite entry The Process is easy and straightforward, because persons only need some form of identification and a completed E/D form
Migration as a result of Treaty Obligations (no work permit required) Migration at the discretion of countries
Critical labour market and development issue in most Member States Importance will only increase in the immediate and long term due to several factors (national / regional / global) Points to skills gaps and changing aspirations of nationals
Often sensitive issue due to several factors Contributions of migrants to economy is often not understood, usually (due to toxicity of the debate and unfounded statements by public officials Guy Ryder June 2015)
Happens in all countries Most common form is the work permit system, but there are other forms, such as work permit exemptions, economic citizenship Countries can decide on duration of migration, but in some cases the nature is more permanent
CSME Audit (2008) and Migration and Free Movement Study (2010-11) revealed : Discretionary migration outnumbers free movement by FAR On top, MAIN MOVERS in the CSME are nationals of Third States
Issues with the definitions Implementation issues in countries IssueswithCVQ/NVQRequirementfor artisans and domestics : More onerous than other categories Assessors are needed, but artisans is very wide ranging On top of other formal qualification
Non-adherence to decisions of the Conference or other Community Organs Process can be unnecessarily lengthy, for example police certificates
Non-adherence to decisions of the Conference or other Community Organs Implementation issues in countries Countries want to assume the role of business managers
The mechanisms, systems and processes, which have been established by the Community to support regional integration, are not geared towards the realization of the objectives of the Community
Thank you..