in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of
Migrant Workers (Supplementary Provisions), and the accompanying Recommendations
Nos. 86 and 151.
III. Protection of the Convention in relation to the rights of migrant
workers and members of their families in an irregular situation
A. BASIC PRINCIPLES
1. Power to regulate
entry and stay
13. The Convention strikes a balance between the sovereign power of States parties to
control their borders and to regulate the entry and stay of migrants workers and members
of their families, on the one hand, and the protection of the rights, under Part III of the
Convention, of all migrant workers and members of their families, including those in an
irregular situation, on the other. This balance is reflected in article 79 of the Convention.
2. Duty to comply
with the laws and
regulations
14. Article 34 of the Convention states that nothing in Part III of the Convention shall
have the effect of relieving migrant workers and members of their families from either the
obligation to comply with the laws and regulations of any State of transit and the State of
employment or the obligation to respect the cultural identity of the inhabitants of those
States. The obligation to comply with the laws and regulations of the State of employment
or any State of transit comprises a duty to refrain from any hostile act directed against
national security, public order (ordre public) or the rights and freedom of others.
3. Regularization
15. Article 35 of the Convention clarifies that the fact that Part III protects the rights of all
migrant workers and members of their families, irrespective of their migration status,
cannot be interpreted as implying the regularization of the situation of migrant workers or
members of their families in an irregular situation or any right to such regularization. While
States parties have no obligation to regularize the situation of migrant workers or members
of their families, they shall take appropriate measures, whenever migrant workers or
members of their families within their territory are in an irregular situation, to ensure that
such a situation does not persist (art. 69, para. 1). States parties shall therefore consider the
possibility of regularizing the situation of such persons in each individual case, in accordance
with applicable national legislation and bilateral or multilateral agreements, taking into
account the circumstances of their entry, the duration of their stay and other relevant
considerations, in particular those relating to their family situation (art. 69, para. 2). When
States parties provide for the regularization of migrant workers in their national legislation,
they must ensure that all migrant workers and members of their families in an irregular
situation have non-discriminatory and effective access to such regularization procedures
and that those procedures are not applied in an arbitrary manner (arts. 7 and 69).
16. The Committee recalls that regularization is the most effective measure to address the
extreme vulnerability of migrant workers and members of their families in an irregular
situation.21 States parties should therefore consider policies, including regularization
programmes, for avoiding or resolving situations whereby migrant workers and members
of their families are in, or are at risk of falling into, an irregular situation (art. 69, para. 1).
4. International
Cooperation
(Part VI)
17. States parties shall cooperate in promoting sound, equitable, humane and lawful
conditions for international migration (art. 64, para. 1). Coordinated policies, which ensure
that migrant workers and members of their families have access to regular channels for
migration, based on actual or projected labour market needs – at all skills levels – and
resources (art. 64, para. 2), are an important element of such cooperation. By making
regular channels of migration available, States parties also contribute to the aim of preventing
and eliminating illegal or clandestine movements and employment of migrant workers in
an irregular situation (art. 68).
21
Committee’s general comment No. 1 (2011) on migrant domestic workers, para. 52.
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