In addition to the definition of “migrant” as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national”, the Convention defines “members of a family” as “persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage, as well as their dependent children.”
As well, the Convention distinguishes between “documented” or “regular” migrant workers and members of their families” (i.e. those authorized to enter, to stay and to engage in a remunerated activity in the State of employment pursuant to the law of that State and to international agreements to which that State is a party) and “undocumented” or “irregular” (i.e. those that do not comply with the above conditions).
The Convention requires the States parties to act in accordance with international human rights instruments and ensure provision of the rights contained in the Convention without distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status.”
Many of the articles in the Convention specify the application to migrant workers of rights spelled out in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and the other core human rights treaties. For example, inter alia:
- No migrant worker or family member shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment;
- No migrant worker or family member shall be held in slavery or servitude or required to perform forced or compulsory labour; and
- Migrant workers and family members shall have the right to freedom of thought, conscience and religion.
However the Convention also includes a number of rights addressing specific protection needs and providing additional guarantees in light of the particular vulnerability of migrant workers and members of their families. For example, it:
- forbids the arbitrary deprivation of property;
- safeguards against confiscation, destruction or attempts to destroy identity documents, documents authorizing entry, residence or establishment in the national territory or work permits;
- protects against collective expulsion;
- provides recourse to the protection and assistance of the consular or diplomatic authorities of their State of origin whenever rights recognized under the Convention are impaired or migrant workers or their family members are arrested or detained;
- ensures migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration, urgent medical care and children’s access to education;
- ensures respect for the cultural identity of migrant workers and members of their families; and
- requires migrant workers and members of their families to be informed of their rights arising out of the Convention as well as of the conditions of their admission and their rights and obligations under the law and practice of the State concerned.
The Convention assigns additional rights to migrant workers and members of their families who are classified as “documented” or “regular” migrant workers. Included are:
- the right to freely move in the territory of the State of employment and freely choose their residence there;
- the right to form associations and trade unions and to participate in public affairs of their State of origin, including voting and election; and
- access to various economic and social services such as housing, protection against dismissal and the enjoyment of unemployment benefits in the same manner as nationals.
The Convention also requires States parties, including States of transit, to collaborate with a view to preventing and eliminating illegal or clandestine movements and employment of migrant workers in an irregular situation. This is particularly relevant for the prevention and elimination of trafficking in persons and the smuggling of migrants. The Convention also requires States parties to “take all adequate and effective measures to eliminate employment in their territory of migrant workers in an irregular situation.”