Blog post written by Elspeth Guild, a RLI Senior Research Associate and Jean Monnet Professor ad personam (Queen Mary University of London), 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.
Article 22, Universal Declaration of Human Rights: “Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”
Introduction
The aim of Objective 22 is to resolve transnational social security problems for migrant workers and their families. The problem which it seeks to address is the inconsistencies and incompatibilities in national social security systems which result in migrant workers contributing to social security funds designed for their welfare but being unable to access benefits when, but for their status as migrants (or former migrants), they would be entitled. This is a frequent problem of migrant workers. In their host state, they contribute in their capacity as workers, to various social security systems, for health care, unemployment benefits, maternity care, pensions etc. As long as they remain resident in their host state (and in a regular status) they can usually access those benefits in their capacity as workers and former workers. But when they return to their home state or third state (should they do so) the lack of agreement between their states of residence and employment may mean that the benefits of their contributions are lost. It is a common principle of national social security systems that most benefits can only exceptionally be exported if a worker leaves the country. This can mean that a migrant worker who returns to his or her home state loses all accrued benefits. This may result in migrant workers being ‘trapped’ in their host state as the cost of leaving is the loss of all social benefits attached to that specific social security system. If they return to their home state to retire or to start a family, they may be destitute as a result if their only income was that resulting for their social security contributions in another state which contributions do not give rise to entitlements which are portable. Another consequence of the lack of coordination in social security across countries is that social contributions by migrant workers end up subsidising the social security funds for residents on the host state’s territory because the migrants are unable to access any benefits on account of their whereabouts (or in some cases status as migrants). Some commentators have likened this to theft.
Comparison
This provision has changed little from the 5 February 2018 Zero draft. The subject has remained stable and the changes have been mainly cosmetic. As the format of the objectives became harmonised, so this objective took up the common language in particular the exhortation to states to draw from the actions set out to resolve the issue.
The objective commences with a commitment to assist migrant workers irrespective of their skills levels to have access to social protection in their host countries. Social protection is a wider term than social security as the latter is normally defined as including contributory benefits only while social protection is usually used to cover the whole gamut of benefits including those which are paid out of general public funds (e.g. taxation). It is always easier to reach agreement on social security benefits for migrant workers than other social benefits to which migrant workers may only have contributed through the payment of taxes rather than specific insurance related contributions. Thus assisting migrants to have access to social protection in the host country is easier than seeking to regulate the export of all social protection to the home state in the event that the migrant worker returns there. To cover this difficulty, the objective proposes that migrant workers should profit from portability of applicable social security entitlements and earned benefits in their home countries when they return there. There is no reference to social protection portability. The objective also covers onward migration to a third country.
The objective proposes a number of actions (four in the Zero Draft, diminished to three in the Final Draft through the consolidation of subject matters not the exclusion of areas) to deliver on the commitment. First, non-discriminatory national social protection systems including social protection floors for national and migrants is recommended. This is consistent with ILO Recommendation 202 agreed in 2012 which brought international coherence to the principle of social protection floors and international agreement on the importance of the concept. The idea here is that there is one floor of social protection rights applicable to all workers and their families. In Recommendation 202 this floor is defined as “basic social security guarantees which secure protection aimed at preventing or alleviating poverty, vulnerability and social exclusion”. The Recommendation sets out 18 principles to achieve this outcome. While these are not repeated in the objective, the reference to the Recommendation gives authority to the use of those principles in pursuit of the GCM objective.
One of the keys to achieving successful outcomes in coordination of social security for migrant workers is the conclusion of international agreements. The objective makes this a second action for states to take. In particular, it states that international agreements should be concluded to ensure portability of earned benefits. This differentiates between social protection benefits and earned benefits – those to which the worker has contributed. Specifically included are pensions and healthcare but there is also a catch-all ‘other earned benefit’ for other types of contributory benefit. The action also suggests that agreements should cover both long-term and temporary migration. The third action calls on states to integrate rules of portability of entitlements and earned benefits into national social security frameworks. One of the big obstacles for migrant workers to access social security entitlements from a host state once they have left is getting anyone in the administration to respond to their requests. Migrant workers form only a small percentage of the labour force in large states. Those states where they constitute a substantial part of the labour market tend to be small and very limited in number. Consequently, when former migrant workers make demands for their social security benefits to be exported often there is no specified person in the social security bureaucracy designated to deal with their applications. As these are inevitably more complicated than claims by nationals (frequently compounded by language problems) they often do not attract the necessary attention to resolve the application. The action proposes that national focal points be designated in countries of origin, transit and destination which are responsible for facilitating portability requests from migrant workers. Specific attention should be paid to women and older persons, according to the action, as they often face additional difficulties. The action proposes migrant welfare funds to be created in countries of origin to support migrant workers and their families. This suggestion may be ambiguous as the assumption is that such funds are supported financially by host countries where the migrant workers have once worked. In some examples of this kind of fund, migrant workers’ social contributions instead of funding benefits for the workers in their home states are used to fund organisations which ‘support’ returned migrant workers generally, funding salaries etc of those working in the organisation. This may benefit returned workers in general but destroys the insurance nature of social security contributions which fund individual’s pensions and other social benefits.
The Future
This objective will be well served if it takes seriously the recommendation to apply ILO Recommendation 202 and promotes ratification of ILO convention 102 on social security. One of the advantages of the Recommendation and the Convention is that they are of general application, improving the economic situation of everyone, not only migrant workers. The development of comprehensive social protection nets helps migrant workers, particularly those who are on low wages but also transforms the host community into a more equal one. Social security coordination through international agreements is notoriously complex and tends to be lengthy. The benefits can be very substantial for migrant workers so complexity should never be an excuse of failure to act but action does require an investment of administrative resources to achieve a result. Often multilateral agreements can be useful to reduce costs, but the specificities of different systems can make this hard to achieve (as the EU is well aware). Key to achieving the objective of portability is the commitment to reduce administrative obstacles which migrant workers encounter when they try to claim their benefits, particularly when they have returned to their home country. Action to create focal points in countries of origin, transit and destination is an excellent place to start to ease the achievement of the objective: portability of social security entitlements. Countries where contributions have been made by migrant workers must reverse legislation which diminishes the portability of those benefits or lowers the value of them purportedly to adjust to the conditions of the home state of the worker.
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