UN Special Rapporteur on the human rights of migrants concludes country visit to Sri Lanka

Colombo (26 May 2014):

Following an invitation by the Government, I conducted a visit to Sri Lanka from 19 to 26 May. During my visit, I met with representatives of the Government, the United Nations Country Team, the Human Rights Commission, the diplomatic community, recruitment agencies, civil society organizations, academics, families of migrants and returned migrants. I also visited Mirihana detention centre,Boossa prison,the Sahana Piyasa welfare centre in Katunayake, Sri Lanka Bureau of Foreign Employment (SLBFE) provincial centres and training centres in Kurunegala and Kandy, and the migrant resource centre in Tangalle.

I would like to express my appreciation for the support and cooperation the Government provided in planning and coordinating the visit, and for having organized a workshop to discuss the impact of recruitment practices on the human rights of migrants, which was the main focus of my visit to Sri Lanka. I also sincerely thank the United Nations Country Team in Sri Lanka for their valuable support and assistance, both before and during my mission.

The Middle East has been the main market for Sri Lankan labour since the late 1970s. Over the years a large recruitment industry has developed in Sri Lanka. Approximately 1.8 million Sri Lankans are working abroad, with great social consequences for migrants and their families. Remittances have become the key foreign exchange earning source in the country, and a source of economic development and dependency for nearly a third of the population.

The Sri Lankan Government has placed particular emphasis on increasing the migration of skilled workers. However, the majority of Sri Lankan migrants are still low-skilled, thus more likely to face human rights violations, including harassment and abuse in the work place.

I welcome positive developments such as the 2008 National Labour Migration Policy and the 2013 Code of Ethical Conduct for licensed foreign employment agencies. However, I note the need to fully implement these initiatives, involving all relevant stakeholders.

The Ministry of Foreign Employment Promotion and Welfare (MFEPW) is the lead Ministry responsible for labour migration, while the  SLBFE is tasked with regulating the foreign employment industry and enforcing the provisions of the Sri Lanka Foreign Employment Bureau Act. I have received reports that the Bureau’s main functions, namely regulation, employment promotion and worker welfare, are not delineated properly. Additionally, although it is supposed to regulate them, recruitment agents are overly represented in the Bureau’s Board, which contains no migrant worker representation. I also note the lack of a comprehensive law to protect the rights of migrants. The draft Sri Lanka Employment Migration Authority Act – which will set up an Employment Migration Authority to replace the SLBFE and have a more overarching role in various components of the industry – is expected to come into force by the end of 2014. I hope the concerns raised will be adequately dealt with in the new law.

As noted in the National Labour Migration Policy, malpractice by private recruitment agencies and gaps in the regulatory framework for sub-agents lead to exploitative and abusive situations for migrant workers. I heard many allegations in this respect by returned migrants and family members of migrants. The role of private recruitment agencies and sub-agents therefore needs to be better regulated and monitored. I hope the new Employment Migration Authority will contribute in this respect. The draft act provides for the establishment of a National Chamber of licensed foreign employment agencies, with mandatory membership for all licensed agents, which will inter alia ensure the strict observance of the code of ethical conduct by its members.

I have heard reports of migrants having signed a contract in Sri Lanka which was replaced by another upon arrival in the destination State, with a lower salary and often a different job description. Many migrants also report paying excessive recruitment fees, as well as human rights violations in the workplace, including serious abuse and exploitation. Some are not paid their wages, or are paid less than agreed. They also report that the Sri Lankan authorities are often not able to protect them in the destination States. I thus note the need to enhance cooperation with destination States to ensure that the rights of Sri Lankans are respected during the whole migration process.

I urge Sri Lankan authorities to pursue the conclusion of legally binding bilateral agreements with all destination States. These agreements should conform to the international human rights instruments and include a uniform model contract for all workers, including domestic workers, which should ensure respect for and protection of their human rights. Labour contracts based on such model should specify the job description, wages and labour conditions.

In the meantime, I urge Sri Lankan authorities to cooperate closely with the destination States, ensuring that the contract which is signed in Sri Lanka, in the SLBFE offices, is shared with the destination State for electronic registering, in order to prevent contract substitution. They must also ensure that the contract is translated into a language that the migrant understands, that he/she be given a copy of the contract, and receive information on how to complain if the contract is not respected.

Pre-departure training and information is already provided to prospective migrants. However, some migrants note that these trainings are insufficient. Training and information sessions should be enhanced in order to ensure that migration decisions are well-informed, and that migrants know their rights and how to seek help or lodge a complaint. In this respect, I welcome the 24/7 hotline and the safe labour migration guide.

I welcome the appointment of labour welfare officers to serve in Sri Lankan missions abroad. However, I have received numerous complaints about lack of support from these missions, and I note that welfare services and consular assistance provided to Sri Lankan migrants in the destination State should be strengthened, particularly in countries with high numbers of Sri Lankan workers. Embassies should have female officers to deal with cases of sexual abuse, provide a local 24/7 hotline free of charge, establish a roster of competent local lawyers, and conduct frequent visits to migrant detention centres.

The majority of Sri Lankan women migrate to work as domestic workers, although the proportion of domestic workers is decreasing. Due to the financial incentives provided, some of these women are sent abroad by their husbands or family members, who expect them to send their salaries back home. Due to the worksite being a private household and the informal nature of the work, domestic workers are particularly vulnerable to abuse and exploitation. Domestic work is excluded from most of the labour laws in many countries, including in Sri Lanka.  Sri Lanka would find it easier to negotiate the legal protection of Sri Lankan domestic workers abroad if they too developed legal protection mechanisms for domestic workers in in Sri Lanka. Such protection should include a law on domestic workers and ratification of ILO Convention 189.

Specific age limits are applied to women who wish to migrate as domestic workers, depending on the destination State. Additionally, a Circular of January 2014 provides for a “family background report” to be prepared by the MFEPW for women migrants. Women with children under 5 will not be “recommended”, while mothers with children above 5 will only be recommended for migration if alternative care arrangements made are satisfactory to ensure their protection.

I regret this discrimination against Sri Lankan women in relation to the right to migrate. The fact that they have small children, or that many domestic workers suffer abuse, exploitation and other human rights violations- including the tragic execution of Rizana Nafeek, cannot be used as a reason to deny them the right to leave their country, provided for in the International Covenant on Civil and Political Rights, ratified by Sri Lanka. Women’s rights organizations in Sri Lanka are protesting against the Circular of January 2014, which they claim leads to irregular migration. I have also been informed that, due to forged documents and corrupt officials, the age limits and Circular are not properly implemented anyway. While the Sri Lankan Government’s intentions behind these restrictions seem to be good, aiming to protect these women and their children, restrictions on women’s right to leave their country is not the right way to achieve such objectives. In fact, I was told that many women migrate in order to escape from family issues, including domestic violence. I urge the Government to focus on other means, such as creating more income-generating opportunities for women in Sri Lanka, including in rural areas, diversifying child-care support measures, and enhancing gender equality and men’s participation in their children’s upbringing.

I also urge the Sri Lankan authorities to ensure better protection of female domestic workers abroad. The bilateral agreement with Saudi Arabia, with a standard contract which guarantees some rights from domestic workers, is a positive development in this respect. Similar agreements with other destination States should be negotiated in line with international human rights instruments and effectively implemented.

While welcoming the increased focus on the effective reintegration of returned migrants, as per the national labour migration policy, some returnees report insufficient reintegration services, most importantly for those who may have experienced abuse. There are also reports of an insufficient period for returned migrants to obtain medical reports to claim insurance for accidents, and many limits in terms of benefits.

I have heard reports that migrants who die abroad are sometimes returned mutilated, some of them with missing organs. No autopsy is performed in Sri Lanka, and the family is often not allowed to see the body.

I welcome the SLBFE’s work on conciliation and dispute settlement, but I am concerned about reports of ineffective handling of complaints from migrants, inter alia due to inadequate staff at SLBFE. I am also concerned about reports that persons who do not register with the SLBFE when they migrate feel they are denied any assistance from the Bureau.

I have received information indicating that Tamils experience a particular need to emigrate, often without documents, due to poor employment opportunities in Sri Lanka and discrimination. I urge the Government to take effective measures to ensure equal work opportunities for all Sri Lankans, contributing to making migration a choice, not a necessity.

Some Sri Lankans try to migrate irregularly to Australia on boats, often facilitated by smugglers. Attempting to migrate irregularly is a criminal offence in Sri Lanka, and these persons are often intercepted by Sri Lankan authorities, who assured me that no penalty is imposed, as they are seen as victims of smugglers. I urge the Government to decriminalize irregular migration as it should only be considered an administrative offence.

Sri Lanka is the current chair of the Colombo Process. I note the potential to enhance cooperation with other Asian migrant sending countries for a common platform on labour migration – including a standard contract, labour conditions, social protection, insurance provisions, etc. – that could serve as a basis for negotiations with destination States, inter alia in the Abu Dhabi Dialogue.
                            
While my visit mainly focused on migration from Sri Lanka, I also looked into migration to Sri Lanka. I regret the policy of mandatory administrative detention of irregular migrants, with no individual assessment, no maximum time limit, no alternatives to detention, and the detention of families with children. In the Mirihana detention centre, I met five children who have stayed there with their families as long as two years, with no access to education, in violation of the provisions of the Convention on the Rights of the Child.

I also deeply regret that the Sri Lankan Constitution guarantees certain rights, including protection against discrimination and the right of peaceful assembly, freedom of association and freedom to form and join a trade union, to citizens only, in violation of key international human rights law guarantees.

Preliminary Recommendations to the Sri Lankan government:

• Enhance efforts to prevent exploitation and abuse of migrants, during the recruitment stage, while in service in the destination country, and upon return to Sri Lanka.

• Ensure full implementation of the code of ethical conduct for private employment agencies and of the national labour migration policy.

• Enhance the monitoring of the recruitment industry, through putting in place a comprehensive policy with high standards, improving services offered by recruitment agencies, holding them accountable for the non-execution of their duties, reducing costs for migrants, and regulating irregular sub-agents.

• Abolish recruitment fees for migrants.

• Enhance pre-departure training and information in order to promote informed decision-making and enhance skills levels, including language skills.

• Negotiate with all destination States binding bilateral agreements providing for the protection of the human rights of migrants in conformity to the international human rights instruments. Work together with destination States to ensure that illegal recruitment fees are not charged, and that employment contracts signed in Sri Lanka are not replaced upon arrival by less favourable ones. This could be achieved by adopting a uniform model contract, which is already being discussed in the Colombo Process, reflecting international human rights and labour standards, with terms and conditions clearly stated, for all workers, to be included in bilateral agreements with all destination States. All bilateral agreements and MoUs signed with destination States should be made public, ensuring transparency and monitoring of their implementation. Government programmes should not encourage migrants to go to countries where the legal and institutional framework necessary to guarantee the protection of their rights is not in place.

• Establish a standard contract for domestic workers, to be included in all bilateral agreements, which should include provisions on, inter alia, wages, working hours, working conditions, overtime, annual leave and effective remedies, as set out in ILO Convention No. 189 concerning Decent Work for Domestic Workers.

• Strengthen welfare services and consular assistance provided to Sri Lankan migrants in destination States, ensuring that diplomatic missions are properly staffed, and that staff is properly trained to deal with all issues faced by migrant workers. The implementation of training programmes and guidelines should be closely monitored.

• Repeal the Ministry of Foreign Employment Promotion and Welfare circular from January 2014, respecting women’s freedom of movement.

• Create income-generating opportunities in Sri Lanka, especially for women, youth and minorities, including in rural areas, in order to ensure that migration is a choice, rather than a necessity. Microcredits to start a business would be one such initiative.

• Conduct a thorough study of the root causes of migration and its social consequences, including for families and children left behind, and enhance efforts to protect children of migrants.

• Enhance the services provided for reintegration of returned migrants, including psycho-social services and livelihood opportunities.

• Conduct independent autopsies of all Sri Lankan workers who die abroad and give family members access to the results.

• Provide the SLBFE with more resources in order to enable it to deal more effectively with complaints made by migrants, and enhance the legal assistance opportunities to help migrants pursue claims.

• Seize the opportunity as the current chair of the Colombo Process to work with all countries of the Abu Dhabi Dialogue to agree on a uniform work contract based on international human rights and labour standards.

• Decriminalize irregular migration.

• Detain migrants in an irregular situation only as a measure of last resort, for a period as short as possible, and systematically apply alternatives to detention, particularly for families and children, who should never be detained.

• Ensure that all persons, regardless of citizenship or migration status, enjoy the rights provided for in the Constitution without any discrimination, in accordance with international human rights law.

• Ratify ILO conventions No. 97 concerning Migration for Employment (1949), No. 143 concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (1975), No. 181 concerning Private Employment Agencies (1997), and No. 189 concerning Decent Work for Domestic Workers (2011).

• Ensure that Sri Lankan law is fully in line with the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, fully implement the Committee’s concluding observations, and make the declarations provided for in articles 76 and 77 of the Convention, recognizing the competence of the Committee to receive communications from States parties and individuals.  Accept the jurisdiction of all treaty bodies to hear individual complaints about the implementation of the human rights treaties to which Sri Lanka is a party.

• In all policy and service delivery issues concerning migrants, include all relevant stakeholders, including trade unions, civil society organizations working on the human rights of migrants and those constituted by migrants and returnees.

• Strengthen the independence of the Sri Lanka Human Rights Commission, provide it with adequate resources, systematically consult it on all issues with human rights implications, and implement its recommendations, inter alia in relation to labour migration from Sri Lanka and detention of migrants in Sri Lanka.