Background to the Convention

On 1 July 2003, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families entered into force in accordance with its article 87(2). By 1 October 2021, 56 States had ratified or acceded to it.

The Convention is a comprehensive international treaty focusing on the protection of the rights of migrant workers and members of their families. It emphasizes the link between migration and human rights. The Convention opens a new chapter in the history of determining the rights of migrant workers and their families and ensuring that those rights are protected and respected. It incorporates the results of over 30 years of discussion, including United Nations human rights studies, conclusions and recommendations of meetings of experts, and debates and resolutions in the United Nations on migrant workers.

Like all other international human rights instruments, the Convention sets standards for the laws and the judicial and administrative procedures of individual States parties. Governments of States that ratify or accede to the Convention undertake to apply its provisions by adopting the necessary measures. They also undertake to ensure that migrant workers whose rights have been violated may seek an effective remedy.

Read more about the history of the Convention in the Fact Sheet.

How the Convention protects migrant workers and their families

The Convention seeks to play a role in preventing and eliminating the exploitation of all migrant workers and members of their families throughout the entire migration process:

Preparing to migrate

When preparing to migrate, ideally, migrant workers should be able to acquire a basic understanding of the language, culture, and legal, social and political structures of the States to which they are going. Article 37 of the Convention establishes the right of migrant workers and members of their families who have the proper documentation or are in a regular situation to be informed before their departure, or at the latest at the time of their admission to the State of employment, of all conditions applicable to their admission, as well as of the requirements they must satisfy in the State of employment and the authority to which they must address themselves for any modification of those conditions.

Problems of adjustment

Migrant workers are especially vulnerable to racism, xenophobia and discrimination. They are often the targets of suspicion or hostility in the communities where they live and work. The deliberate association of migration and migrants with criminality is an especially dangerous trend, one which tacitly encourages and condones xenophobic hostility and violence. Migrants themselves are criminalized for irregular border crossing, for example. The characterization of migrants in an irregular situation as "illegal" is widespread, implicitly placing them outside the scope and protection of the rule of law.

Also, migrant workers are known to have been excluded from the scope of regulations covering working conditions, and to have been denied the right to take part in trade union activities. Article 25 of the Convention establishes that all migrant workers and their families shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and other conditions of work and terms of employment.

Article 31 of the Convention requests States parties to ensure respect for the cultural identity of all migrant workers and members of their families and shall not prevent them from maintaining their cultural links with their State of origin.

A number of specific provisions of the Convention guarantee migrant workers in a regular situation and members of their families the rights to freedom of movement, to form associations and trade unions, and to participate in public affairs.

Social and cultural challenges and rights

Living conditions for migrant workers are often unsatisfactory. They face serious housing problems and although they contribute to social security schemes, they and their families do not always enjoy the same benefits and access to social services as nationals of the host State. Article 27 of the Convention says that with respect to social security, all migrant workers and members of their families shall enjoy the same treatment granted to nationals insofar as they fulfil the requirements provided for by law. Article 28 grants them the right to receive any medical care that is urgently required for the preservation of their life or avoidance of irreparable harm to their health.

Often, migrant workers leave their families in their State of origin. Article 44 of the Convention says that States parties shall facilitate the reunification of migrant workers who are in a regular situation with their spouses or persons who have with the migrant worker a relationship that produces effects equivalent to marriage. Also, when families are remaining together, it has often been said that the children of migrants - studying in a different language and adapting to a new environment - cannot be expected to equal the performance of their fellow pupils unless special measures are taken to overcome these difficulties. On the other hand, fear of local parents that overall educational standards will decline with the admission of migrant children has become a sensitive issue in some States. The Convention in article 30 establishes that each child of any migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned.

Arbitrary expulsion and voluntary return

International legal instruments establish protection for migrant workers against arbitrary expulsion when, for example, an employment contract ends. Articles 22 and 56 of the Convention prohibit measures of collective expulsion and impose certain procedural steps to be taken when issuing an expulsion decision. All migrant workers and their families also have the right to return to their of origin if they so wish.

Irregular and clandestine migration/halting traffic

Without status, a migrant worker in an irregular situation may become the target of exploitation, obliged to accept any kind of job and any working and living conditions. Restrictive immigration policies often turn flows of would-be migrants towards illicit channels.

The Convention seeks to put an end to irregular or clandestine recruitment, the smuggling and trafficking of migrant workers and to discourage the employment of migrant workers in an irregular situation.

Other international mechanisms for protecting migrants

The entry into force of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families reinforces and completes a series of other provisions under the main United Nations human rights treaties. Many of the provisions of such treaties are contained in the Convention on Migrant Workers, are applicable to all migrant workers and members of their families and in fact enhance the protection of migrants, for example:

• the International Covenant on Civil and Political Rights;
• the International Covenant on Economic, Social and Cultural Rights;
• the International Convention on the Elimination of All Forms of Racial Discrimination;
• the Convention on the Elimination of All Forms of Discrimination against Women; and
• the Convention on the Rights of the Child.

At times, a right contained in another human rights treaty may provide a higher level of protection to migrant workers and members of their families than the Convention on Migrant Workers. For example, article 12 of the International Covenant on Economic, Social and Cultural Rights provides for the right to the highest attainable standard of health for all persons, whereas article 28 of the Convention may contain lesser obligations for States parties concerning migrant workers who are in an irregular situation and their families.

The Committees monitoring the implementation of these treaties have on many occasions expressed concern that often there is a failure to implement their provisions without discrimination in respect of migrants.

Also, the ILO Migration for Employment Convention (Revised), 1949 (No. 97) and the ILO Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) contain provisions designed to protect migrant workers.