Blog post written by Bethany Hastie (University of British Columbia) and forms part of a series of blog posts analysing the final draft (objective by objective) of the UN’s Global Compact for Safe, Orderly and Regular Migration.
International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 11(1): The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
ICESCR, Article 2(2): The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Objective 15 aims to ensure that all migrants, regardless of migration status, have access to basic services. This objective carries forward the rights contained in international human rights law, including especially in the ICESCR, which delineates rights to housing, health care, and education, and requires states to guarantee such rights in a non-discriminatory manner.
Migrants are often either formally or practically excluded from access to basic services, including health care, education, housing, legal aid, social benefits such as employment insurance, protection of law enforcement bodies, labour organizations, and others. They are often subject to continuing discrimination under law and in practice, increasing the difficulty of accessing basic services. Immigration policies and practices in countries across the globe have targeted hospitals, schools and similar locations for enforcement operations, exacerbating the risks migrants face in accessing basic services. These issues have been documented by policy organizations, scholars, and international bodies, and efforts to address these issues through legislation and policy have been undertaken, such as by the European Commission against Racism and Intolerance.
Objective 15 sets out general recommendations to reduce the legal and social barriers migrant workers face in accessing basic services, and to improve access, including by: ensuring non-discriminatory treatment under the law; ensuring that cooperation with immigration authorities does not exacerbate the vulnerability of migrants; establishing accessible access points for services that are inclusive and non-discriminatory; and, establishing a national mechanism for complaints and monitoring. Objective 15 also makes specific recommendations regarding access to health care and education, communicating heightened importance in relation to those two services.
Changes to Objective 15 over the course of negotiations
In the course of negotiations and drafts of the Global Compact, several changes have been made under Objective 15. Most significantly, the objective has moved substantially on the position communicated about cooperation with immigration authorities. The original draft of the text specifically encouraged a separation of service delivery from immigration authorities, and recommended the creation of “firewalls” to prohibit information sharing between these bodies. This was significant as the fear of denunciation and deportation is a major barrier for migrants accessing basic services.
The concept of “firewalls” protects irregularly present migrants in particular, who may desire or need access to public services, by prohibiting the sharing of client information with other public bodies, notably immigration authorities. Firewalls may be achieved through policies that prohibit information sharing, prohibit reporting to immigration authorities, or prohibit access to client information by immigration authorities.
By specifically recommending the separation of service delivery from immigration authorities through the use of “firewalls”, the original text of Objective 15 created an opportunity for meaningful access to services for migrants. However, the final draft of the Global Compact removes not only the language of “firewalls” from Objective 15, but any recommendation regarding the separation of service delivery from immigration authorities. Instead, the objective acknowledges the reality of on-going cooperation with immigration authorities, only recommending that such cooperation be done in a manner that will not exacerbate the vulnerability of migrants “by compromising their safe access to basic services or unlawfully infringing upon the human rights to privacy, liberty and security of the person at places of basic service delivery.”
While this wording may enable states to interpret the recommendation in manner that will encourage some “firewall” activity, such as through the mention of rights to privacy, liberty and security of the person, it does not possess the strength and clarity of the original draft, which more assertively recommended the separation of service delivery from immigration and related bodies. As a result, the final text regarding cooperation with immigration authorities renders much of the remaining recommendations of the objective impractical, as cooperation with immigration authorities is known to be one of the most significant deterrents for migrants to seek out and access services.
A second shortcoming of Objective 15 relates to its silence on the array of basic services to which the recommendations should apply. While the objective highlights health care and education, there are many basic and public services to which migrants need formal and practical access. These include: housing; labour bodies; legal aid; courts; law enforcement; and, social assistance, amongst others. By neglecting to explicitly reference these additional service needs, Objective 15 fails to fully appreciate the interconnected needs and experiences that migrants have, and which require access to a broad array of services.
Migrants are known to face discriminatory treatment in accessing many basic services, especially in relation to housing, and may also be formally excluded from entitlement to services such as legal aid. In addition, the possibility of denunciation often prevents irregularly present migrants from approaching labour bodies when they are experiencing abuse in the workplace, and similarly from approaching law enforcement and courts where they are victims of crime or experience other legal problems. By highlighting only health care and education as specific services in the text, Objective 15 risks states focusing exclusively on these services to the neglect of many others that migrants need access to.
The text of Objective 15 did positively evolve in respect of the recommendation concerning non-discriminatory treatment of migrants. As citizenship status may often be used as a disguise for discriminatory treatment, addressing this issue is urgent in order to enhance access to basic services for migrants. The original text of Objective 15 recommended states to enact laws that explicitly prohibit discrimination on a number of grounds. Over the course of the negotiations, several grounds were added, which has resulted in a final text that is more inclusive of the various identity characteristics that may be targeted for discriminatory treatment in law and practice: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, and, disability.
The recommendation concerning non-discrimination has been further revised to encourage states to ensure that service delivery does not amount to discrimination “irrespective of cases where differential provision of services based on migrant status might apply.” In other words, this recommendation calls on states to ensure that migrant status is not used as a proxy or disguise for discriminatory treatment on other bases. This is important to explicitly communicate given that migration status is known to be used in this manner, and thus creates barriers for migrants to access services.
Overall, the final text of Objective 15 does some important work towards achieving safe, orderly and regular migration in a global context. Fundamentally, it calls on states to ensure that all persons subject to its jurisdiction have access to basic services, such as health care and education, regardless of migration status. This affirms the basic human rights that all persons possess under international law, and emphasizes the need for practical access alongside formal legal entitlement. Given the widely documented barriers and exclusions migrants face in accessing basic services, it is a strength of the Compact to include a specific objective targeted towards reducing these barriers and challenges.
Implementation challenges will likely arise in identifying concrete steps to improve access in relation to basic services. First, as noted earlier, many services are not specifically detailed in the recommendations, including housing, legal aid, access to courts, social security and assistance, and others. It will not be clear what basic services should be targeted for implementation of the recommendations made under Objective 15 beyond the limited recommendations made in respect of health care and education. The recommendations further fail to set out concrete steps for states to enhance service delivery at a general level, although some steps can be deduced from other pieces of the text, such as ensuring necessary language services, such as translators, are available for communication purposes.
The specific guidance provided regarding health care and education may lead to efficient and effective implementation of the objective in respect of those two services. For example, the recommendations point to the need to reduce communication barriers in health care delivery, and references the existing international World Health Organization framework as a starting point for states to implement and strengthen health care delivery for migrants. Relatedly, the recommendations concerning education explicitly identify the multiple sites and levels of educational activity to which migrants should be given access, including not only early childhood education, but also vocational training.
Monitoring and investigations will also likely be hampered, due in part to the removal of recommendations concerning firewalls. As noted earlier, the possibility of denunciation is a significant deterrent to migrants accessing services. It is also known to be a significant deterrent in migrants voicing complaints or approaching institutions when their rights are being violated. As such, even where a monitoring and investigation body is established, as recommended by Objective 15, it will be challenging for such a body to be effective.
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