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

Portuguese

Luanda 10 May 2016

Following an invitation by the Government, I conducted a visit to Angola from 3 to 10 May 2016. During my eight-day visit, I met with Government representatives, civil society organisations, international organisations, as well as migrants themselves, including in detention.

I would like to express my deep appreciation for the support and cooperation the Government provided in planning and coordinating the visit. I appreciated the openness of the authorities and had frank discussions with all the officials we met. I would also like to sincerely thank the United Nations Resident Coordinator’s Office for their valuable support and assistance, both before and during my mission.

After a long post-independence war, Angola has achieved thirteen years of peace, stability and economic development. This attracts many migrants from surrounding countries. Its long and porous border makes it difficult for Angola to monitor undocumented migration.

Immigration rules are not well known and when they are, their implementation is hampered by lack of proper institutional structures and bribery. The overly stringent immigration rules make being undocumented often the only option for many migrants. Still, migrants continue to arrive in Angola to work, often in construction and mining, and set up businesses, all of which contributes significantly to the economy. However, their status is rarely regularised and they face exploitative conditions of work.

I warmly welcome information received from the government that they are looking into the ratification of United Nations human rights treaties such as the Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Protocol, as well as International Labour Organization treaties. I urge the Government to ratify these conventions by the end of the year.

I appreciated meeting with the Inter-Sectoral Committee on Treaty Reports which plays an important role in providing information on how Angola meets its international obligations.

I welcome initiatives by the Government – supported by the UN and civil society organisations – to give human rights training to the judiciary. I urge the Government to expand such training to all law enforcement officials that deal with migrants and seek technical cooperation with the OHCHR for such training.

However, many improvements are still needed to Angolan migration policy and practice.

The need for a comprehensive human-rights-based migration strategy

I strongly recommend that Angolan authorities establish a comprehensive migration strategy that would take into account all aspect of migration and foster more regular status for most migrants through organising and facilitating mobility rather than trying to resist it.

The new framework should be firmly human-rights-based and should establish mechanisms empowering all migrants to properly defend their rights, with the support of civil society.

The first measure to be taken is the decriminalisation of undocumented migration, which, while being the violation of some administrative rules, is not and should never be considered a crime.

I urge Angola to ratify the Optional Protocol to the Convention against Torture (OPCAT) and establish a National Preventive Mechanism to undertake regular unannounced visits to all places of deprivation of liberty in Angola, including migrant detention centres.

I would also recommend the establishment of a fully independent National Human Rights Institution, compliant with the Paris Principles of 1990 and offering a proper complaint mechanism, which would be able to enhance the protection of the human rights of all in Angola, including migrants.

Intimidation or harassment by law enforcement officials

I was informed that undocumented migrants, asylum seekers and refugees often come under harassment and intimidation by the police. I was informed that the police carry out operations in artisanal diamond mines, informal markets, residential areas, shops, streets, churches and mosques, in search of undocumented migrants, often going door to door.

These operations are often marred by violence, threats, intimidation and the destruction of valid ID documentation. I was informed that migrants and asylum seekers are regularly arrested and detained in large numbers, including pregnant women and children, and that policemen use this as an opportunity to bribe undocumented migrants. They are then detained without access to legal information or assistance. I also received information that those who defend the rights of undocumented migrants can also be intimidated by the police.

I urge the Government to swiftly investigate reports of law enforcement officials that bribe, confiscate property, use unnecessary force to arrest, detain and deport irregular migrants and who physically abuse them. Those prosecuted should face stiff sanctions.

An unnecessarily harsh asylum policy

Since the new Asylum Law of June 2015 has been promulgated, the former system for refugee status determination has been discontinued, while the new regulation necessary for the establishment of a new refugee status determination system has yet to be created. This legal gap is extremely prejudicial to asylum seekers who are provided with no alternative status and it should be remedied as soon as possible.

The 2015 Asylum Law provides for new Identification Documents for refugees and asylum seekers . However, the Regulation that is to introduce the new ID has not been finalized and at the same time, the SME suspended issuance of documentation for those who applied for asylum since the entry into force of Law 10/15.

The right to work is not recognized for asylum-seekers. As a result, they have no choice but to engage in the informal labour market for their basic subsistence. In addition, since the adoption of Regulation 273/13 in August 2013, refugees can no longer obtain the mandatory business license “Alvará commercial” . This situation thus restricts the possibility for refugees to attain economic self-sufficiency, which is necessary for finding durable solutions. The authorities must take the necessary steps to ensure that asylum-seekers have access to the labour market and to remove the discriminatory provisions that prohibit refugees from owning and operating a business.

The complicated and lengthy asylum procedure, restrictions on the freedom of movement, lack of documentation and the denial of the right to work or set up a business encourage many potential refugees not to register as asylum seekers. This may result in violations of principle of non-refoulement.

The central objective of the 2015 Asylum Law is to “prevent the abusive use of the asylum process by those who wish to enter the country by deceitful means”. It thus introduces a policy of mandatory detention for asylum-seekers which violates the international law principle according to which detention should always be a measure of last resort, individually justified and of the shortest possible duration. Crucially, it deters refugees from seeking international protection in order to avoid detention.

Through a reservation to Article 26 of the 1951 Convention, and as enshrined in Article 5 of the Foreigners Act, Angola reserves the right to restrict the freedom of movement of foreigners, for considerations of national or international order. The 2015 Asylum Law further curtails the freedom of movement of asylum seekers. Even for those asylum-seekers who have documents, there is a practice of restricting their freedom of movement within Angola .

I urge the authorities to quickly register all asylum seekers living in Angola, to quickly finalize and implement the Regulation relating to the issuance of quality identification documentation for asylum-seekers and refugees, in order to improve access to public services (health care, education, etc.) and to prevent arbitrary arrest and detention, and to commit to issue documents for asylum seekers and refugees in a timely manner.

Angola should also consider withdrawing the reservation to Article 26 of the 1951 Convention, and recognising freedom of movement for all foreigners, including asylum seekers and refugees, with only very restrictively delineated and individually justified exceptions.

Unmonitored detention

Migrants are arrested under suspicion of irregular entry or stay, often in spite of the documents presented, and, if necessary, brought to a detention centre while documents are verified or arrangements relative to their expulsion are being finalized.

Mandatory detention of undocumented migrants and asylum seekers is neither a legitimate nor an effective tool for deterring undocumented migration and has instead the opposite effect of driving them further underground.

It is unfortunate that on the day that I visited the detention centre in Cabinda, there were no migrants present and I was therefore not able to make a proper assessment of how the detention centre works. I was informed by government officials that migrants are kept there for only up to 12 hours. In the Trinta detention centre, I met with five detainees when the capacity is of over five hundred.

I was informed that arrested migrants may be subjected to harsh conditions of detention.

The conditions are overcrowded and unsanitary. There is little access to basic hygiene products such as soap or sanitary napkins. Detainees have little privacy and seem to be only allowed access to phones in order to obtain bribery money from family and friends.

Crucially they do not have access to justice. They receive little legal information, have difficulty accessing lawyers and have no access to legal aid. Detention is indefinite and ends only upon the expulsion of the undocumented migrant, or the verification of documentation (which is a lengthy process), or the release after payment of a bribe.

In the Trinta detention centre, detainees are kept in large groups spread out in distinct rooms, one of which is allocated only for women. Movement out of the rooms is restricted to meal times. I was informed that young children are kept with their mother and older male children are kept with the men. I was also informed that detainees also suffer from harassment, degrading treatment, and physical violence and that lawyers trying to defend migrants are occasionally intimidated as well.

The detention of migrants in such centres is not subject to independent monitoring, and takes place without prior authorization from a judicial body. An investigation conducted by the Attorney General to review the legality of the detention is usually very lengthy. I urge the authorities to ensure an independent monitoring without restriction by civil society organisations and international organisations of all places where migrants are detained.

I also urge the authorities to ensure that detention is used only as a measure of last resort and for as short a period as possible, and am encouraged to hear that alternatives to detention are being used for some migrants.

Detainees are sometimes denied contact with the outside world, including legal assistance. The Government should ensure that detainees are provided with the possibility to contact their family, their consular authorities, UNHCR, civil society organisations or a lawyer.

Detainees must be allowed to keep their mobile phones.

I was informed that sometimes children are detained. As stated in the Convention on the Rights of the Child, ratified by Angola, children should always be treated as children first and foremost, and the principle of the best interests of the child should always guide all decisions regarding children, whatever their administrative status and circumstances.

Detention can never ever be in the best interest of a child, and children should never be detained for reasons relating to their migratory status or that of their parents, nor should families with children .

Migrants in detention seem to be missing prompt access to a competent lawyer, through an accessible legal aid system. I am further concerned at reports that undocumented migrants may be subjected to detention without recourse to a court to pronounce on its legality.

Angola must establish programmes that facilitate access to justice for migrants, by providing adequate information about protection options available, simplifying judicial procedures, establishing mechanisms for effectively reviewing the necessity of any detention, and providing free or affordable quality legal representation to migrants for all the procedures they need to go through.

Migrants and people who assist migrants, such as lawyers, civil society organisations and international organisations such as UNHCR, often lack information with regard to procedures and practices in the migration and protection proceedings. An increased effort must be made to allow migrants to access relevant information in real time.

Collectives expulsions

I am also seriously concerned about the impact of collective expulsions of undocumented migrants. I was informed that, at the border with the DRC in Dondo, the deportation is often implemented on the day of the arrest. This does not give them an opportunity to apply for a judicial remedy.

Of particular concern is the impact that this has asylum seekers and refugees and on Angola’s commitment to the principle of non-refoulement. Article 54 together with Article 3(z) of the Law on Refugee Status prohibits the expulsion of refugees and asylum-seekers from Angola, except for reasons of national security or public order, for having committed a fraud that resulted in the recognition of refugee status or for having committed an excludable act. In spite of this protection, I am concerned that the principle of non-refoulement is being eroded, considering the sharp increase in immigration arrests of migrants and refugees, and the difficulties for them to have access, once detained, to legal services, civil society organisations or international organisations. I urge the Government to implement oversight mechanisms that will allow it to fulfill the principle of non-refoulement.

Documentation/Birth registration

I was informed that Angola has not repealed the Administrative Instruction issued by the Ministry of Justice and Human Rights (Circular de Execução Permanente) in May 2011, related to the issuance of birth certificates to children born of foreigners – including refugee children – that in effect suspended the birth registration of foreigners born in Angola. As a result, a large number of foreigners are unable to register their children and obtain birth registration documents. Moreover, when provided, birth certificates indicate that the parents are foreigners and this is used by many, such as employers or civil servants, to discriminate against migrants.

Birth registration is fundamental to the protection of migrant children and prevents statelessness. Failure to document a person’s legal existence prevents the effective enjoyment of a range of human rights, including access to education and health care.

I urge the authorities to extend the free birth registration campaign to cover all foreigners born in Angola, including undocumented migrants and refugees, in order to ensure that they are guaranteed access to economic, social and cultural rights without discrimination.

Lack of access to justice

Migrants have difficulty accessing complaint mechanisms, partly because of lack of information, lack of legal representation and partly because they fear being immediately detained and deported. More efforts are needed to provide effective access to justice.
I note the need for more effective employer sanctions, as well as more effective investigation and prosecution for offences by employers under the Labour Law. In this respect, I regret the low number of court cases against abusive employers.

Discrimination

I am also concerned about the discrimination faced by undocumented migrants and their children who suffer from inadequate access to basic education, housing, and health care.

In addition, I am concerned about the negative rhetoric currently and extensively used in relation to migrants which equates all undocumented migrants to criminals and religious extremists.

I urge Angola to take all appropriate and effective measures, including the adoption of policies and programmes under its comprehensive migration strategy, to combat and eliminate discrimination against migrants, and fight negative perceptions of migrants.

Bilateral agreements

I commend Angola for the Comunidade de los Paises de Lingua Portuguesa (Community of Portuguese Language Countries) CPLP and can see the benefits of advancing in the CPLP, but believe that it is important to have additional arrangements that do not undercut existing provisions for migrant workers and the implications of a preference for “high-skilled” labour on the human rights of “low-wage” migrant workers. I also encourage the portability of social benefits between member States, citing the cross-regional Ibero-American Multilateral Agreement on Social Security.

I urge the Angolan Government to develop bilateral mobility agreements with neighbouring countries, such as the one with Namibia. In the absence of advancing on mobility provisions, such bilateral mobility agreements which would include human rights safeguards, would allow for the regularisation of migrants and the protection of their rights.

Encouraging  civil society

I had good discussions with some representatives of civil society.  A sustainable human rights environment requires a vibrant civil society, including independent unions and a strong NGO communityI urge Angolan authorities to strengthen  civil society so that it can better advocate for migrant rights and contribute to policies and practices affecting the human rights of migrants, in order to foster a healthy public debate on this issue.

Preliminary Recommendations to the Angolan government

• Ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which would provide the Angola government with a useful human-rights-based framework for managing migration.

• Ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Optional Protocol to the Convention against Torture and establish a National Preventive Mechanism with a mandate to undertake unannounced visits to all places where migrants are deprived of their liberty.
• Ratify the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
• Consider seeking technical assistance from the Office of the United Nations High Commissioner for Human Rights in order to make sure Angolan legislation and practice are in line with these treaties.
• Consider the inclusion of a Human Rights Advisor with the UNDP Office in Angola.
• Collaborate with UNHCR to monitor and protect refugees. Considering the number of asylum seekers and refugees in Angola and the protection challenges including the implementation of the new Asylum Law of June 2015, UNHCR should not scale down but increase its protection capacity in Angola.
• Ratify ILO Conventions, including on migrant workers (no 97 and 143), freedom of association, right to organize and collective bargaining (no 87 and 98), domestic workers (189) and private employment agencies (181), and consider seeking technical assistance from the International Labour Organization to ensure Angolan legislation and practice are in line with these Conventions.
• Establish the new institution responsible for refugee determination so that all asylum seekers and refugees can be registered and issued with quality identification documents in a timely manner.
• Increase the capacity of SME so that they can swiftly issue the required identification documents to undocumented migrants, particularly those by Angola’s borders.
• Collaborate with civil society organisations and international organisations to raise awareness to documented and undocumented migrants about asylum and immigration procedures and how they can they can access and use this information.
• Effectively implement existing legislation, including by providing quality legal representation, prosecuting violations and imposing meaningful sanctions on entities and individuals who violate migrants' rights.
• Provide human rights training to all law enforcement officials and civil servants who come into contact with migrants.
• Investigate allegations of bribery, confiscation of property, physical abuse, intimidation, torture, ill treatment and harassment against migrants by law enforcement officials and provide appropriate sanctions against perpetrators.
• Collect reliable disaggregated data relating to all aspects of migration, inter alia, on complaints by migrant workers against their employers/sponsors, on labour standards violations, on workplace accidents, injuries and illnesses, on arrest, detention and deportation of undocumented migrants.
• Create a strong and effective labour inspection system, with more labour inspectors, well trained on human rights and labour standards. Labour inspectors should monitor the enforcement of labour laws, including by interviewing the migrant workers, reviewing their contracts and making sure they are allowed to keep their passports, are issued IDs, and are paid on time.
• Reinforce the capacity of trade unions to defend the labour rights and human rights of migrant workers, and foster a vibrant civil society that would contribute their experience and expertise to a healthy public debate on migration policy and practice

• Provide appropriate detention conditions, and ensure that all detained migrants have easy access to means of contacting their family, consular services and a lawyer, which should be free of charge if necessary, have access to an interpreter, and have the right to promptly challenge their detention.

• Adhere to the Standard Minimum Rules for the Treatment of Prisoners, which apply to all categories of prisoners, both criminal and those imprisoned under any other non-criminal process which sets out minimum standards for, inter alia, personal hygiene, clothing, bedding, food, exercise, access to communication with the outside world and medical services.

• Develop alternatives to detention for children and families with children, as the detention of children is never ever in their best interest.

• Strengthen the mandate of the Office of the Ombudsperson in relation to the monitoring of migrants’ rights.
• Develop migration and mobility agreements, initially with the neighbouring countries which provide a much needed labour force in the mining and construction industry and other forms of low-wage labour.
• Ask the Commission of Migration Policy set up to develop a response to growing migration trends in Angola to focus on developing a comprehensive human-rights-based migration strategy covering all aspects of the governance of migration into Angola. In developing this strategy, the work of the Commission should not only focus on the benefits of migration in the development of the economy but should also ensure that the human rights and labour rights of migrants are fully respected.
• Consider establishing a fully independent National Human Rights Institution, compliant with the Paris Principles of 1990 and offering a proper complaint mechanism, which would be able to enhance the protection of the human rights of all in Angola, including migrants.