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Support for the Rabat Process on Migration and Development “Meeting of Experts on the Social Rights of Migrants and their Portability under a Transnational Framework” Rabat, (Morocco) 31st March – 1st April 2011 Session 7. “The key elements for a transnational system of social rights benefits (Host country - Origin country)” Senior Social Security Specialist, Regional Office for Africa, (Addis Ababa), ILO Social Security and International Migration Specialist, Regional Office for Africa THE KEY ELEMENTS FOR A TRANSNATIONAL SYSTEM OF SOCIAL RIGHTS BENEFITS (HOST Senior Social Security Specialist, Regional Office for Africa (Addis Ababa) Social Security and International migration Specialist, Regional Office for Africa (Addis Ababa) In a global economy migration is not a marginal phenomenon. Migration is during the last years substantially increasing. The total global migration stock is estimated at 214 million people, approximately 3 % of the world population. The transnational labour migration is increasing, the demographic trends in the developed counties e.g. in Europe will lead to a shortage of skilled workers. The European Union (EU) agreed to develop well managed legal immigration policies fully respecting national competences to assist Member States (MS) in meeting future labour needs. In 2009 the directive on the conditions of entry and residence of third country nationals for the purpose of highly qualified employment were adopted. This first step shows that the EU is getting aware, that immigration of third country nationals is a key element for economic growth and also social stability. In the meantime three draft directives, which concerns third county nationals are discussed in the EU. On the other hand, unemployment is growing in the developing countries in particular in Africa and dramatically in Sub Sahara. The increasing workforce of young and skilled people is attracted by the European labour market. But also in Africa the migration flow is increasing. The stock of migrants in the ECOWAS –countries is estimated to be around 7.5 million people. The social security systems are governed by the principle of territoriality. This means that each system is based on the tradition and the economic development of a country. The objective is to protect the people residing in the country. The external dimension is mostly not well developed. That’s the reason why the systems differ in structure and objectives. If someone is living his whole life in one country the person is integrated in the national system and is fully aware of the acquired right and the coverage. Migrant workers who move between countries and different systems are often in a very vulnerable situation. The risk to lose the acquired rights in the country of origin and the risk of no access to the system in the host country will create a crucial situation for the migrant worker and his/her family. The portability of benefits depends on the national legislation, of the country of origin and the host country. Equal treatment with the nationals is not automatically provided in respect of access to the A precondition of a transnational system is the existence of comprehensive social security systems. A transnational system would coordinate social security systems as well as facilitate mobility between The overarching goal should be that migration is embodied in a transnational system of social protection. Disadvantages should be minimized or completely prevented. At the end of a career, a lack of protection and loss of acquired rights which are related to the migration should be avoided. If a person worked in different countries, he/she should perceive, at the end of the working life, his/her acquired rights resulting out of the contributions paid to the national system. For the purpose of acquiring and retaining the right to a benefit all periods should be taken into account under the laws The bilateral and multilateral agreements which are concluded between two or more countries have the objective to coordinate the different social security systems. The term ‘coordination’ means that the systems as such are not touched by the agreement, but they are connected through the The negative effects, the loss of rights under the national legislation, should be neutralized in respect of the coverage of social protection. Bilateral and multilateral agreements are facilitating the migration, the recruitment of the needed foreign workforce, the family life of the migrant, and of course the return to the country of origin. The agreements are the instrument to protect the migrant workers who move from their country of origin to a host country. Nevertheless, those agreements differ so that migrant workers are mostly not protected in a comprehensive manner. Indeed, those bilateral or multilateral agreements may differ because of the interests of the contracting parties. In many agreements, the material scope and the personal scope are defined in a different way. The European social security coordination instruments (e.g. Reg.1408/71 or Reg.883/2004) are covering the traditional branches (ILO-Convention 102) and risks. The bilateral agreements which are concluded with third counties are mostly restricted to the material scope of old age, invalidity, accidents at work, occupational diseases and death-pensions. Some agreements are extended to sickness, maternity and unemployment benefits. In fact, there exists a variety of different approaches concerning the branches covered. The agreements will only include in their material scope the existing branches in the systems of the contracting parties. The motivation to conclude a bilateral agreement can vary. At first, both parties must have an (economic) interest to conclude an agreement. Furthermore, some countries are only open to negotiate if the system of the other country corresponds more or less to its own system. Moreover, the reciprocity requirement is also an important element. For example, if one contracting party has no branch for health, then the other party will not accept to include the health branch in the material scope. Finally, the motivation can also be more political, so France concludes agreements with the Equal treatment, the key principle which is also enshrined in the ILO conventions means that the persons who fall under the personal scope of the agreement are treated in the same way as a the contracting party treats its own nationals. Portability of benefits means that benefits - especially pensions- must be paid to person resident in Applicable legislation means that the legislation is applicable where the activity exercised (principle Aggregation for the entitlement and calculation means that all periods acquired in the contracting parties concerned have to be taken into account. Transnational Agreements with and within African countries European countries have concluded agreements with only few African states. Morocco and Tunisia concluded agreements with traditional receiving countries in Europe. The francophone western and central African countries mostly concluded agreements with France. The African counties themselves concluded a limited number of bilateral agreements, e.g. Tunisia with Morocco, Cote d’Ivoire with Burkina Faso. Multilateral agreements are still not in force. Those agreements are fully negotiated in the frame of the ECOWAS –countries, but still not in force. Even if freedom of movement is applied, social security is not guaranteed in cross border situations. The most developed system of coordination is established within the EU. Mobility and social security are linked. The systems of 30 countries are coordinated. The risk to lose acquired rights is eliminated. The Court of Justice of the European Union (CJEU) strengthened the social rights of migrants. In contrast to most bilateral agreements, the material scope is extended to all branches. EU-Regulation applicable to third country nationals In principle, the personal scope of the Regulation is restricted to the nationals of the MS. After a long and controversial debate the Reg. 859/03 and 1231/10 were adopted by the Council. These regulations extend the EU-coordination system to third country nationals who are moving within the If migrant workers return to their country of origin, the portability of the acquired rights is still regulated only in the national law. If under the national law the portability is entirely excluded, the migrant worker has no access to his entitled benefit in the country of origin. Association Agreement of the EU with e.g. Morocco, Algeria and Tunisia Under the Spanish presidency, the Council adopted provisions to implement the coordination rules which were part of the agreements. If this Council decision is approved by the Association Council 2011, the MS must apply the principle of equal treatment and export acquired pensions to those countries. This will improve especially the legal status of Algerian workers, because of the lack of In the EU three draft directives are discussed: The single permit directive, the seasonal workers directive and the inter-corporate transfer directive. These directives will improve the legal status of third country nationals. They will enjoy a common set of rights. Some MS are hesitant to apply the principle of equal treatment in respect to the export of benefits. The debate will settle the question if Europe will treat third country nationals, who contributed to the social security systems, in a fair and The ILO enshrined in several Conventions the principles of equal treatment and non discrimination. In relation to social security the ILO also strengthens the need for access to social rights and recommends the constituents to conclude agreements. Recommendation No 167 proposes an agreement with regard to the maintenance of rights in social security. Bilateral and Multilateral agreements may partly compensate the lack of protection in the country of origin and the host country. The transnational systems differ, in the material and personal scope. Third country nationals have to face severe problems if, for example, their families remain at home - no sickness benefits - and if they are returning home. There is no legal guarantee that the acquired Only if they stay in the host country the access will be provided. Thus, migrant workers can be forced to stay in the host country, if they depend on the benefit. In Africa there are some developments to implement social security agreements, but there isn’t yet a visible progress. It is for that reason that migrant workers depend on the national legislation, which is in some countries quite developed. Rwanda e.g. exports benefits if someone is moving to another It can be summarized that migrant workers coming from Africa only partly are protected by a transnational system. In the near future there is no change in this respect visible. The very limited agreements which were concluded in the last decades by the countries which are part of the Rabat process are not giving an optimistic picture. The demographic developments in Europe and in Africa are a challenge for the two continents. The shortage of skilled labour workforce in Europe is an issue which is discussed in several MS. A new Migration and social security are interlinked. For that reason a new strategy should be developed. In future it makes no sense that the 27 EU MS start to negotiate bilateral agreements with African states. Europe has to develop an external dimension in the field of protection for migrant workers. Social Europe should take responsibility for the fair treatment of migrant workers. Export of benefits based on contribution from EU to Africa Judgement of the European Court of Human Rights (ECtHR) Migrant workers are contributing to the social security systems but often their rights are not guaranteed. The portability and the maintenance of acquired rights should be considered as a basic For that reason it should be regulated that third country nationals can receive their pension in the country of origin. In its most recent judgment on social security (3 March 2011), the ECtHR ruled that the right to a pension which is based on employment can in certain circumstances be assimilated to a property right. “.the Court considers that the compulsory affiliation to an old-age pension scheme, based on the equally compulsory membership, may also give rise to the legitimate expectation to receive pension benefits at the point of retirement and constitutes a possession within the meaning In line with this judgment, the restriction of the portability of pension can be considered as a violation of the European Convention on Human Rights (ECHR). EU-MS and Contracting Parties to the ECHR refusing to export their benefits based on compulsory contributions have to consider very carefully this judgement. This could be the case even if a MS is not exporting the pension to its own Migrant workers who cannot carry out the waiting period (e.g. for the old age pension) should have access to the voluntary insurance in order to be able to fulfil the requirements. Some counties require very long waiting periods, so even migrants, who contributed for more than 20 years to a system, will have no chance to get the pension. Moreover, some countries foresee voluntary contributions only for their own nationals. Reimbursement of social security contributions Where third county nationals may not have met the qualifying conditions for acquiring social security rights, and in absence of applicable agreements, reimbursement of the social security contributions which do not give rise to rights should be considered as an instrument for fair treatment. Community-based approaches and the UN Social Floor initiative In fact, only a small proportion of migrant workers are likely to be covered by a bilateral social In this context it is important to consider new strategies to extend social protection of migrant These strategies can include the community-based approaches and the use of migrant workers remittances to develop micro insurance schemes for families staying behind. The UN Social Protection Floor could also be a strong alternative for migrant workers within Sub Sahara Africa. The idea of a socio-economic floor and its relationship to social protection was emphasized by the World Commission on the Social Dimension of Globalization that stated “A certain minimum level of social protection needs to be an accepted and undisputed part of the socio-economic floor of the global economy.” Since then, the term “social floor” or “social protection floor” has been used to mean a set of basic social rights, services and facilities that the global citizen should enjoy. The term “social floor” can correspond to the existing notion of “core obligations”, to ensure the realization of, at the very least, minimum essential levels of rights embodied in human rights treaties. However, no universally agreed definition exists at this time, but a social protection floor could consist of two main elements that help to realize respective human rights: Essential services: geographical and financial access to essential services (such as water and sanitation, adequate nutrition, health and education) Social Transfers: a basic set of essential social transfers, in cash and in kind, paid to the poor and vulnerable (children, old age and active groups who are unable to earn sufficient income on the labour markets) to provide a minimum income security and access to essential health care. In many cases this would need to be supported by the development or amendment of the legislative system to uphold and protect the rights of those likely to be affected. The initiative is owned by national stakeholders, including governments (ministries of labour, health, finance, agriculture …), social partners and national NGOs, etc. with the support of UN agencies such as ILO, WHO, FAO, IMF, OHCHR, UN Regional Commissions, UNAIDS, UNDP, UNDESA, UNESCO, UNFPA, UNICEF, UNHABITAT, UNHCR, UNODC, UNRWA, WFP, WMO, other international organizations such as World Bank and Regional Development Banks, and bilateral donors, and International NGOs. ILO estimates that a set of minimum transfers is not costly in per capita terms, although it is likely to require support from external sources in the poorest settings. Migrant workers and their families within Africa could be covered if the Social protection Floor is based on the residency and not on nationality as it is recommended. Cooperation between group of countries In future the external dimension of the EU should be developed. Cooperation between the ECOWAS- countries and the EU could increase the mutual understanding and could also develop the social security of migrant workers. The Rabat Process and the Ministerial conference can also be an opportunity to establish a regular exchange. 1. The transnational Framework is protecting migrant workers only partly. How can the system be 2. The cooperation between the EU and the African countries is not well developed in the field of social protection. What can be done to develop the external dimension and responsibility of both 3. The ILO conventions are protecting migrant workers. The ILO standards should be taken into account in the frame of the Rabat Process. Is there in Africa a political will to ratify these conventions and, if not, is there a possibility to create or to strengthen such a political will?

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