Blog post written by Kathryn Allinson a Refugee Law Initiative Research Affiliate undertaking a PhD in Law at Queen Mary University of London, and forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
Objective 17 aims to eradicate all forms of discrimination against migrants. It is underpinned by international legal obligations relating to non-discrimination as outlined in Article 2 of ICCPR, Article 2 ICERD, Article 2 CEDAW and HRC Gen Comm No 15 (1986) on the Conditions of Aliens. Objective 17 focuses on eliminating discriminatory practises however they may manifest themselves and condemns expressions and acts of racism and xenophobia. It also commits to improving public discourse surrounding migration in order to promote a ‘more realistic, humane and constructive perception’ of migration. For non-discrimination to be eliminated, state policies must also be constructed so as to avoid explicitly or implicitly discriminating against migrants. Thus, discrimination must be addressed at all levels through a ‘whole of society’ approach. In addition to recognising the need to eliminate discrimination against migrants, it is critical to evaluate and monitor how Objective 17 is implemented in national law, policy and practice. This article discusses 4 key indicators that are vital to effective implementation of Objective 17 in practice.
Indicator 1: Legal frameworks to promote, enforce and monitor non-discrimination on the basis of migratory status (ICCPR Article 2 (3a-c); CCPR General Comment No. 15 and 31; Article 6 ICERD; CERD, General Recommendation No. 35)
Removing discriminatory laws and putting in place legal frameworks that advance equality are prerequisites to ending discrimination against migrants. It is suggested that national human rights bodies, together with State government, be given competences to conduct a review of existing legislation to identify gaps and discriminatory provisions. The indicator will then be utilised by these bodies to monitor and measure whether the State party has modified, abolished or repealed existing laws, regulations, customs or practices that directly or indirectly constitute discrimination against migrants. This will be crucial in accelerating progress by tracking the removal of discriminatory laws.
The indicator will also track the adoption of legal frameworks that promote, enforce and monitor equality. Key questions will include whether the State’s laws guarantee human rights and fundamental freedoms to all persons equally, irrespective of migratory status, including in the political, economic, social, cultural, civil or any other field. This must cover both direct and indirect forms of discrimination, as well as recognising the intersectionality of forms of discrimination against migrants. This includes discriminatory factors such as race, ethnicity, religion or belief. Anti-discrimination legislation is often framed to target employment discrimination and access to goods and services. Migratory status is a distinct category where the link between migratory status and nationality is strong. Many migration authorities are fully versed in tackling race or religious discrimination but less so in respect of discrimination on the basis of migratory status. Therefore, it will be necessary to ensure that these authorities are aware of the non-discrimination rights of migrants.
In addition to a review of discriminatory laws; there must also be access to the judicial review process to challenge discriminatory policies by the State. This ensures that anti-discrimination legislation protects against discrimination by public authorities and institutions, as well as private actors. Migrants must have access to legal assistance through legal aid and NGOs who can assist in the process of legal challenges. Furthermore, there must be access to fair hearing by a competent and independent court or tribunal for migrants to challenge discriminatory practises by other actors such as employers, unions, the media. There must be independent, safe, effective and accessible complaint and reporting mechanisms available to migrants.
As a result of these judicial processes, the legislation must provide timely, appropriate and effective remedies for migrants who allege that they have been subject to discrimination. Remedies should include different forms of reparation, such as: monetary compensation, restitution, satisfaction and changes in relevant laws and practices.
Indicator 2: Promotion of migrant participation at all levels (ICCPR Article 22; ICMW Article 26 and 40)
In eliminating discrimination against migrants, the voices of migrants and their participation in society must be promoted. There must be a demonstrable ability for migrants to participate in social and political life. The government should take appropriate measures to advance equality and migrant’s participation in political and public life at all levels; this includes seeking migrant voices, and migrant-led organisations input, in the development of policies that affect migrants.
Migrants should have an equal right to participate in, and have access to the services of, NGOs and other organizations concerned with the public and political life of the country. Violence against migrants, including violence around political participation, must be prohibited such that the State party must have taken appropriate measures to create an environment of zero tolerance for violence, assault or harassment of migrants.
Migrants must also be able to participate in recreational activities, sports and cultural life. Local activities must be supported by local authorities and councils to promote mutual respect and integration. The whole of society approach should be evidenced through engagement of political, religious and community leaders to detect and address racism and xenophobia at local level.
Indicators 3: Removal of barriers to migrants accessing social services and fair employment (ICSECR Articles 11, 12 and 13; CERD General Comment No. 30, CMW General Comment No. 1 & 2)
Barriers to access of social services, including education and employment, can be evidence of discriminatory practises by both the state and private actors. The State must ensure that, through social service provision, migrants are able to access an adequate standard of living, through fair education, employment and social services when required. Human rights bodies, under the overarching monitoring of CERD, can utilise this indicator to monitor State compliance. This requires firewalls because barriers to social services often take the form of requirements on social services to share migrants personal data for the purpose of immigration enforcement. This constitutes an unacceptable barrier to access to services (See ECRI GPR 16). Data sharing must never be permitted for the purpose of immigration enforcement.
Migrants rights to fair pay, working standards and freedom from harassment are protected by human rights and labour laws, as well as those relating to smuggling and trafficking. Migrants must have access to trade unions to represent their working rights and access review and remedies for unfair treatment. Equal remuneration for migrants as to non-migrants, including social security benefits, such as paid leave, retirement, unemployment, sickness, invalidity etc, for work of equal value must be ensured through State legislation. Labour inspectorates should be prohibited from sharing personal data on immigration status which they may come across in the carrying out of their functions of labour standards enforcement without the express consent of the individual. Again, data sharing must be prohibited.
Heightened levels of poverty and vulnerability of migrants must be addressed through fair access to social services in order to ensure protection of migrants. Migrants must not be discriminated against, on the basis of their migratory status, in prohibiting access to healthcare services and they must be provided with appropriate health services, including healthcare protocols and hospital procedures.
Migrant children must have access to education, including access to the same curricula, examinations, teaching staff, vocational and career guidance, as non-migrants, irrespective of their migratory status (see CRC Background note).
Indicator 4: Migratory status-disaggregated data utilised to end systematic intoleration (ICCPR Article 17; OHCHR General Comment 16)
Objective 17 seeks to end religious and migratory status profiling that contributes to systematic intoleration of migrants. As such, in line with Objective 1, State authorities are encouraged to collect, analysis and disseminate data disaggregated by sex, age, disability, race, ethnicity, geographic location and socio-economic background and used measurable indicators to assess trends in the situation of migrants. The tracking and publishing of trends analysis should be utilised for greater transparency and public understanding of the manifestations of racism and aiding policy decisions to eliminate discrimination.
This must be carefully counterbalanced by evidence of use of firewalls to ensure that migratory status disaggregated data is not used to inform directly, or indirectly, discriminatory practises or decisions by State authorities and migration tribunals, employers or other private entities. Any use of data must be approved by migrants and data must not be shared beyond the explicit use for which approval is granted.
Indicator 5: Evidence-based reporting to support the elimination of discrimination against migrants (CMW, General comment No. 2; CMW/C/PER/CO/1, para. 27)
In line with the purpose of Objective 17, there must be policies to promote quality reporting, educating and public awareness raising of the positive contributions migrants make to society, whilst protecting the right to freedom of expression. National media regulators must be empowered to monitor fact-based and ethical reporting rules and penalise those outlets that fail to abide by them. Furthermore, regulators should be allocated funding from national budgets to provide media training and education of media outlets and professionals to improve knowledge, build capacity and sensitize media professionals and outlets on the situation and human rights of migrants.
Quality media reporting should be promoted through ethical reporting standards set by regulators. Reporting should be utilised to inform public perspectives through evidenced based information. There should be state and regulatory body investment in ethical reporting standards, their dissemination and enforcement. In particular, there should be a prohibition of public funding to media outlets that promote intolerance.
Introduction of public education measures through meaningful and targeted awareness campaigns must be evident through State education and development policies. Education should be encouraged at all levels, from school to professional development, especially within the public sector, on migratory issues and perspectives to promote understanding and counter xenophobic rhetoric. In particular, training at institutional levels, including of judicial, law enforcement officers and other public officials on the prohibition of discrimination against migrants, and the underlying legal obligations ensuring that officials are impartial and fair in cases considering migrants. Furthermore, promotion of evidence-based research that considers the human rights of migrants as well as their impacts on, and contributions to, countries of origin, transit and destination.
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