Committee on Rights of Migrant Workers considers initial report of Peru

Committee on Rights of Migrant Workers

15 April 2015

The Committee on the Protection of the Rights of Migrant Workers today concluded its consideration of the initial report of Peru on its implementation of the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

Luis Enrique Chávez Basagoitia, Ambassador and Permanent Representative of Peru to the United Nations Office at Geneva, said that Peru was not sheltered from complex problems of discrimination, which was why the Government had established the National Commission against Discrimination (CONACOD).  The Office of the National Superintendent for Migration had been established in 2012 and it had an operational and administrative autonomy.  Peru was not a host country of migrants, who represented barely 0.25 per cent of the total population.  On the other hand, the number of Peruvian nationals residing abroad was estimated at 2 million, or 8.5 per cent of the total population.  A new Aliens’ Act, which was being drafted, would provide for the management of migration without affecting respect for the fundamental human rights of migrant workers. 

In the interactive dialogue which followed, Committee Experts acknowledged that Peru was currently in the process of transition when it came to migration management, and appreciated the delegation’s candour in providing replies.  Experts asked about the rights of Peruvians living abroad, such as the rights to vote, enjoy social security protection while abroad and upon their return home, and consular protection.  The lack of clear statistics on the number of Peruvian nationals abroad was raised by a number of Experts.  Other questions related to the expulsion of foreign nationals, preventing family unity, treatment of Haitian migrants, process of regularization of irregular migrants, and the conditions for MERCOSUR nationals to reside and work in Peru.

In concluding remarks, Francisco Carrion Mena, Committee Chairperson, said that very satisfactory presentations had been heard by the delegation of Peru.  Their responses were meticulous.  A number of matters were still pending, including the precise data which was requested.

Mr. Basagoitia, in concluding remarks, expressed gratitude to everyone, and particularly the Rapporteurs.  

The delegation included representatives of the Ministry of Foreign Affairs, the Office of the National Superintendent for Migration, the Supreme Court and the Permanent Mission of Peru to the United Nations Office at Geneva.

The Committee will next meet in public at 3 p.m. today to start its consideration of the initial report of Uganda (COW/C/UGO/1).

Report

The initial report of Peru (COW/C/PER/1) can be found here.

Presentation of the Report

LUIS ENRIQUE CHÁVEZ BASAGOITIA, Ambassador and Permanent Representative of Peru to the United Nations Office at Geneva, said that Peru was basing its actions on the standards and principles established in the 1993 Constitution, which specified that ratified treaties formed part of national law.  Peru had ratified all fundamental human rights treaties and the main optional protocols.  The protection and promotion of human rights were at the heart of the Peruvian legal order.  The establishment of the Vice Ministry of Human Rights and Access to Justice had been a milestone.  The National Plan for Human Rights 2014-2016 was a major document containing more than 100 activities along four strategic areas of action: promotion of a culture of human rights, cross-cutting of human rights issues, special protection for vulnerable groups, and upgrading of the national legal order.  There was a law in place on the economic and social reintegration of migrants who returned to Peru, which expanded the range of available benefits. 

Peru was not sheltered from complex problems of discrimination, which was why the Government had established the National Commission against Discrimination (CONACOD).  A single platform against discrimination was being currently established as a way of the State dealing with that multifaceted, inter-sectorial problem.  The principle of equality was recognized in laws and constitutional practices.  Particular attention was given to women of African descent and to indigenous communities.  Peru was not a host country of migrants, who represented barely 0.25 percent of the total population.  On the other hand, the number of Peruvian nationals residing abroad stood at 2 million, or 8.5 per cent of the total population. 

The Office of the National Superintendent for Migration had been established in 2012, which had an operational and administrative autonomy.  It worked with various State authorities and border control bodies, and established an online platform of services to alleviate migratory proceedings in Peru.  Payment of annual alien fees and renewal of residence cards were among services provided that way.  The inter-sectorial Working Group for migratory management supervised and coordinated migration-related policies.  Earlier in 2015, the “General Principles of Migratory Policy in Peru” had been approved.  It viewed migrants as human beings who could expect full-fledged support from the host State, and covered various categories, including Peruvians abroad, returnees and foreign nationals in Peru.  The National Superintendent and the Working Group were both operating under the provisions of the Aliens Act, which was being currently updated.  The process of revision of the Nationality Law was also underway.  Regardless of the ongoing revisions, every person in Peru, national or foreigner, was entitled to certain benefits, such as the provision of health care.

In 2011, in cooperation with the International Organization for Migration, 16 awareness-raising workshops on labour, migration and capacity-building training had taken place across the country.  Since 2013, training had been provided for officials dealing with migration-related matters.  The “Vamos Peru” programme had been set up to help those who had lost their job find employment again.  A national Labour Inspectorate was in place to ensure that labour standards were respected, for Peruvian and foreign nationals alike.  There were a number of provisions in place which made it possible for migrant workers and their families to seek redress if their rights had been violated.  Free legal assistance was provided to the victims of trafficking.  Protection and implementation of justice were given utmost importance in Peru, and a national plan to combat trafficking in human persons was in place. 

Despite the progress made, a number of challenges remained.  The work required went beyond the adoption of certain mechanisms and participation of the society at large.  In 2013, some 12,000 foreign nationals had entered Peru for work purposes, a clear increase to previous years.  A new single administrative procedure text would provide for the management of migration without affecting the respect of fundamental human rights of migrant workers.  The respect of human rights was a matter of ethical and legal imperative for the Peruvian State and society, concluded Mr. Basagoitia.

Questions from Committee Experts

SALOME CASTELLANOS DELGADO, Committee member serving as Country Rapporteur for Peru, said that it was positive that the Constitutional Court of Peru had found that human rights from ratified international treaties would have constitutional status.  It was regrettable, nonetheless, that the Migration Law was yet to be adopted as it affected the implementation of migration policies.  What was the current status of the draft law and had civil society been involved in its preparation?

Could the delegation provide information about the functioning of the Office of the Ombudsman?

More information was sought about the protection of Peruvian nationals abroad.

The Expert asked about policies guiding expulsions of foreign nationals from Peru.  Was there a right of appeal, and how about the rights of foreigners with disabilities?

PABLO CERIANI CERNADAS, Committee member serving as Co-Rapporteur for Peru, said that the absence of a migration act remained an issue. 

What specific measures might be taken by various branches of the Government when it came to expulsions, so that family reunifications could be guaranteed? The vast majority of persons expelled appeared to be of Haitian origin.  The Expert asked whether any alternative measures were considered or applied. 

Could a person be deprived of liberty under the current migratory policies?

The Expert raised the issue of quotas assigned to foreign workers, such as 20 per cent in the labour force of a company, which contradicted the Convention.

Another Expert praised Peru for giving the necessary importance to migration.  He asked if migrant workers joined trade unions or could hold office in Peru?

A very disturbing report on domestic workers read that they were constantly mistreated, often based on their ethnic origin.  Had Peru acted on the recommendations by the Special Rapporteur on this?

The issue of fines for employers who violated rights of their employees, especially foreign employees, was raised by another Expert.

Could more information be provided on the sentences handed down in cases of violence against women? 

What steps had been taken by the State party to ensure equal access to social services? How was family unity protected, both for Peruvians living abroad and foreign nationals living in Peru?

A question was asked on how the State party was balancing its migratory policies, given that there were many more Peruvians abroad than foreigners in Peru.

Many Peruvian nationals went to the United States, Spain and Italy.  Since those countries were not parties to the Convention, how did Peru work on protecting their rights?

Information was sought about the role of the private sector.

How was the Peruvian diaspora making contributions to the elections back home? Were they taking an active part in it?

Another Expert welcomed the creation of the National Commission against Discrimination, but wanted to know more about its work.  How did it take on cases, especially when it came to migrant workers?  Were migrant workers aware of its existence? 

The issue of irregular migrant workers was brought up by another Expert.  What were the specific measures taken by the State party to minimize the number of irregular migrants in Peru, and also the Peruvians abroad?  Was Peru cooperating with other countries on addressing that issue?  Were there consular services provided by the State party abroad?

An Expert asked for more detailed statistics on migrants, and whether there was desegregated data.

A question of the involvement of civil society in migration management was raised by an Expert.

Could more information be provided about remittances, given that there were millions of Peruvian nationals living abroad?  What was the State party doing to channel that money into more productive sectors, rather than just for consumption?

The delegation was asked to provide an assessment of existing bilateral and multilateral treaties. 

What was Peru’s position on the possibility of free movement of people across South America, in the context of MERCOSUR?

Responses from the Delegation

The delegation stated that Peru was fine tuning its normative framework.  Peru was currently in motion, and it might not be the best moment to take pictures.  Nonetheless, Peru welcomed all comments, including those that might appear to be critical.

With regard to statistics, the delegation agreed that precise data were indeed necessary for understanding any phenomena, including migrant workers.  The State party was currently working mostly on estimates, but committed to providing more detailed statistics in due time.  The number of Peruvians abroad, for example, ranged between two and three million.  Those voting abroad numbered some 700,000, based on which other numbers were extrapolated. 

The issue of domestic work within Peru had very little to do with the issue of foreign migrant workers, the delegation explained.  In Latin America, many Peruvians served as domestic workers in other countries.  It would not be accurate to say that Peru was a destination country for domestic migrant workers. 

On the issues related to jurisdiction, a delegate said that under the Constitution, Peruvian nationals and foreigners could opt for different legal channels to protect their rights.  Migrant workers thus enjoyed equal rights for the protection of rights provided by the Constitution.  Labour issues were addressed in front of labour courts, but could go all the way up to the Supreme Court.  The final instance could also be the Constitutional Court. 

Criminal proceedings could be handed down through sentences on the perpetrator and civil reparations to the offended party, a delegate explained.

International treaties held constitutional standing and prevailed over national legislation.  Provisions of Peruvian laws ought to be interpreted in the context of the Convention and other international treaties which Peru had acceded to.

Regarding possible channels for appeal for migrant workers, a delegate stated that there were no specific avenues for appeal for that group; rather, there were general channels of appeal for citizens at large.  A handbook aimed at migrant workers had been prepared in 2010 and was meant to provide them with necessary guidance.  Complaints from migrant workers should rather be called “referrals”. 

Workshops, seminars, conferences and other training had taken place in order to raise awareness of the rights of migrant workers.  Judiciary and law enforcement officers had largely benefited from such educational opportunities.

Criminal complaints should be brought to relevant criminal judges.  Information was lacking at the moment on how many migrants had submitted such complaints.  The State party was working towards providing more detailed statistics and desegregated data.

Peru was looking into ways of providing free legal assistance and interpretation services for migrant workers.  The courts did not keep statistics on the nationality of persons involved in court cases.

A delegate said that Peru had ratified a number of international human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women.  Peru had adopted a national plan to combat violence against women, and it was being implemented by seven Ministries, which spoke about the cross-cutting nature of the problem. 

The Ministry of Foreign Affairs of Peru had a consular department, which dealt with protecting Peruvian nationals abroad.  It was currently working on building an integrated protection system, which would provide the highest quality of protection services for Peruvian migrants abroad.  Pilot operations had been launched in the United States, Argentina and Chile, and premises were also being sought in Spain and Italy. 

Any Peruvian national who wished to contact a family member could approach the department which would help them track the family member concerned.  If a Peruvian abroad fell victim to an accident or was killed, consular services could be sought and financial assistance might be provided.  Provisions in the budget existed for that purpose.

In relation to multilateral and bilateral conventions, it was explained that the latter existed with Ecuador, with the goal of eradicating irregular migrants and providing more consistency.  Later in the month, Peru and Ecuador would hold a meeting to further fine tune the existing agreement.  Bilateral arrangements also existed with Chile and Colombia.  There was a plan to conclude an agreement with the Republic of Korea.  At the multilateral stage, the Ibero-American Social Security Convention had been ratified. 

Peruvians abroad could not stand for office, but efforts were underway to create a single constituency for Peruvian diaspora. 

Regarding remittances, a delegate said that the current estimate showed that two million Peruvians abroad created a projected income of USD three billion in remittances per year, mostly meant for consumption purposes. The Government was looking into providing more productive ways of using those remittances.

The concept of the South American citizenship, discussed at MERCOSUR, went beyond free movement of persons, and also aimed at common identity. Heads of State had approved the concept note, and given a green light for further work in that regard.

Regarding the new draft law on migration, the delegation stressed that Peru was in a transition stage between two systems.  Overall, Peru had improved both socially and economically, thus becoming a country much more attractive for migrants than a few years earlier.  Various stakeholders, including civil society, were involved in the drafting of the new Aliens’ Act, which was expected to facilitate migratory flows and formalize things. Irregular migration would not be criminalized.  A new category of humanitarian migrants would be introduced; tourist visas would also be given a new, closer look.  The process of adopting the new law was not speedy, and the delegation could not provide an estimated date of its passage and entry into force. 

Peruvian civil society was very well established and active, and generally contributed to drafting processes.  Within the treaty bodies, civil society frequently presented shadow reports.  Due to the time pressures, civil society had regrettably not been involved in the preparation of Peru’s initial report. 

On the issue of trafficking in human beings, the delegation said that some bodies within the Ministry of Foreign Affairs and the Ministry of Justice were dealing with that scourge.  At the same time, there were various programmes in place within the Ministry of Labour.  The overall amount spent on fighting trafficking in Peru increased every year.  A comprehensive programme for family welfare hosted victims of trafficking and victims of sexual abuse; in addition, some of the regions had specific programmes in that regard.

Speaking about foreigners in Peru, the delegation informed that, as of 2013, some 100,000 foreigners had been registered living in Peru, the largest group of whom were between 30 and 39 years of age.  The largest foreign community came from the United States, followed by China and Bolivia.  The majority of those migrants belonged to the professional group, followed by students and office workers. 

On the basis of the information available, a delegate said that between two and three million Peruvians lived abroad, more than half of whom were women; most of those migrants were in their twenties.  Most Peruvian emigrants went to the United States, Argentina, Chile and Spain.  Some 21.7 per cent of Peruvians abroad were students, followed by those working in construction.  The delegation admitted that gathering statistics like that was not an easy task. 
Responding to the questions on labour-related matters, the delegation stated that quotas and limitations did not have a serious impact in reality.  If a foreign worker had a spouse of Peruvian descent, they did not count as migrant workers.  The same was the case if there was a bilateral agreement with the migrant’s country of origin or if he worked for a multinational company or an airline.  The citizens of MERCOSUR countries benefited from the exceptions as well.  The delegate informed that 10,700 foreigners were subject to the quotas, whereas more than 13,000 were not. 

Foreign nationals also had the right to work in Peru’s civil service.  All registered workers within particular companies had the right to form or be part of labour unions, and the same was the case when it came to social security.  Social security arrangements existed with a number of countries, which guaranteed full pension rights when migrant workers left the country where they worked.  Companies deducted taxes from workers.

With regard to irregular workers, a delegate said that some of them made their situation difficult for themselves to become regularized.  In some instances, they did not want the State to discover what exactly they were doing in Peru; there were certain restrictions on irregular workers, as no country wanted to condone illegal work.  The authorities were nonetheless striving to ensure that everyone was treated the same way.  The Aliens’ Act should become the tool to facilitate the conditions of foreign workers.

On the questions on custody and detention, it was explained that individuals could be held for up to 24 hours.  Police authorities tried to ascertain their legal status within that time frame.  Companies which failed to meet criteria imposed on them by the State would also be sanctioned.  In terms of administrative offences, individuals could be held up to four hours, during which their legal status would need to be established.  Many criteria had to be fulfilled for detention to take place.

Regarding redress, a delegate stated that there were provisions for migrant workers who could come before relevant judicial bodies to ensure that compensation would be granted.  All migrant workers and their families had the right to compensation for arbitrary detention.  The Public Prosecutor needed to investigate and assess the fact reported, in order to decide if grounds existed for opening of a criminal investigation.  Harm caused was assessed by relevant authorities with the view of ascertaining whether it was in line with the requested compensation.

Returning to the question on migrants who had been given a chance to regularize their situation, the delegation stressed that a judge could effectively establish if the migrant had presented a just case on why he or she should remain in the country.

On the acts of discrimination, the delegation informed that several cases had been closed as there had not been sufficient evidence behind the claims of discrimination.  The delegation was not aware of any pending cases in that regard.  The Constitution guaranteed that everyone was equal before the law, and it was up to the authorities to ensure that there were relevant laws in place to prevent such situations from occurring. 

Answering the question on femicide, it was specified that Peru had taken steps to prevent such acts.  The Ombudsman, during his visits to various parts of the country, had found out numerous instances of domestic violence against women.  In 2011 and 2012 each, there had been around 100 complaints, and the number had decreased since then, once a stricter law was applied.  Abuse and harassment were now punishable.

Regarding questions on the protection of families, for Peruvians abroad and foreigners in Peru, the delegation said that Peru firmly supported the right of families to reunification and the protection of children and adolescents.  There were provisions on family reunification in place with the European Union.

The Government of Peru had approved, in 2014, a national education plan on fundamental rights and duties. The plan had three main goals, focusing on the culture of peace, inclusion and non-discrimination.  Activities to promote understanding of vulnerable groups were included.  The outcome of the plan would be assessed when the time was right.

Returning to the issue of discrimination, another delegate informed that CONACOD had a platform against discrimination, which was updated on a regular basis.  If there were complaints on discrimination, a relevant Ministry would deal with them within their respective fields. 

On Peruvians who were working abroad illegally, the delegation said that there had been bilateral efforts with the United States on resolving that issue.  In Peru, as stated earlier, there were a number of legal procedures for irregular workers to become regularized and obtain necessary papers.  Venezuela had, for example, adopted a decree on the regularization of Peruvian immigrants in 2012 and 2013.  Bilateral programmes and arrangements were in place between Peru and a number of Latin American countries.  Peru had mobile consulates which were providing a wide array of services and support to Peruvian nationals abroad.

With regard to voting abroad, a delegate informed that the authorities had taken a number of actions to make it easier for Peruvians abroad to vote.  The main requirement for voters was to present a national identity document, for which they first had to change their domicile address.  Information had been disseminated on how to vote abroad.  A number of voting offices had been opened in the areas with particularly high numbers of Peruvian immigrants. 

At the same time, any foreign national over the age of 18 who had resided in Peru for more than two years had the right to vote in municipal elections; the only exception was border areas.  A Spanish citizen had recently been elected as a mayor of a town in Peru. 

Responding to the question on Haitians and humanitarian visas, the delegation explained that since 2013 the Ministry of Foreign Affairs had made a great effort to inform Haitians of possibilities of going directly to Brazil without passing through Peru.  Messages to Haitians were distributed via radio programmes in Creole.  Official statistics showed that, from 2010 till 2013, there had been 16,856 Haitians had come into or left Peru; a large majority of them were men.

Since 2012, legal provisions had provided norms for recruitment abroad, increasing protection of those recruited.  There was a national record of private employment agencies for which regulations were well defined. The National Labour Authority carried out training, raising awareness of possible trafficking and forced labour. The delegation explained that the majority of migrant workers in the Andean region mostly travelled independently.

Violence against domestic workers in Peru was related to gender and power structures between employers and workers.  Migrants in Peru worked in many other spheres, a delegate said.

Follow-up Questions from Committee Experts

An Expert asked for further information on the specific measures taken to protect trans-frontier workers, who crossed the border on a regular basis.

Were specific measures taken to facilitate the integration of Peruvian migrant workers who returned to their home country? Could the delegation provide a number of Peruvians who had returned?

Concern was raised over possible child labour, and clarification was sought in that regard.

The Expert wondered how a foreigner could work in the national civil service of Peru.

Another Expert said that it was clear that the State party was in a transitional stage, during which it was encountering some obstacles.  He asked about the distinction between migrants and migrant workers.  The Convention was applicable on migrant workers during their entire journey, even whilst they were unemployed.

The Committee had received information from civil society, the Expert clarified.

With regard to judicial proceedings and safeguards, he asked if there were any examples of migrants who had been given any decisions on expulsions. How was the family unit protected in cases of expulsion?

Regarding Haitians, were there any statistics on holding them in detention and their expulsion?  What impact had the visa requirement had on preventing the increase in their irregular migration?

More information was sought on the procedures for citizens of Peru denouncing irregular migrants. 

With regard to the MERCOSUR residence agreement, the Expert asked if nationals of all MERCOSUR countries held residence in Peru.

Another Expert asked how the restrictive legislative measures on migrants in Peru could be explained.

Could Peruvians who had returned home after working abroad for years enjoy the benefits of the pension system?

Could any information be provided on the protection of the freedom of conscience and religion of migrant workers in Peru?

An Expert noted a discrepancy between the data provided on Peruvians abroad, and asked whether there existed any more precise data on the number of Peruvians voting in elections.

Responses from the Delegation

The delegation believed it was clear how migrants and migrant workers were protected in the State party.  Peru was clearly committed to the protection of both groups.

There has not been as much civil society participation in the drafting of the initial report as was normally the case.  The Andean Association of Jurists had taken part.  The authorities maintained a good relationship with civil society.

Any citizen could lodge a complaint against a neighbour or anyone they knew.  What was important was that migrant workers had legal tools and means at their disposal to defend themselves.

There were not many Peruvian workers who returned to Peru after working abroad. There were some legislative measures to encourage them to return home once they retired, but only about 3,000 persons were reported to have done so.  There were bilateral agreements with those countries where Peruvians worked, so that they could enjoy social security benefits there.  Peruvians abroad were normally so well established that they did not express a desire to return home. 

The delegation stated that the dialogue with different Peruvian associations abroad helped consular offices understand where the needs lay.  Some 750,000 Peruvian voters were registered abroad, half of whom had voted in the latest election.

The trend of highly qualified workers coming to Peru for work was visible, in the aftermath of the economic crisis in Europe.

Freedom of religion was protected in both legislative and real-life terms, as was the case across most of Latin America.  Peru had a long history of immigration of different religious groups.

The public sector required a number of services; recently a Cuban paramedic had been employed in one of the Ministries, for example, which was a sign of the openness of the Peruvian system.

Concluding Remarks

FRANCISCO CARRION MENA, Committee Chairperson, said that very satisfactory presentations had been heard by the delegation of Peru.  Their responses were meticulous.  A number of matters were still pending, including the precise data which was requested.

LUIS ENRIQUE CHÁVEZ BASAGOITIA, Permanent Representative of Peru to the United Nations Office at Geneva, expressed gratitude to everyone, and particularly the Rapporteurs.  

 __________

For use of the information media; not an official record

Follow UNIS Geneva on: Website | Facebook | Twitter | YouTube |Flickr