CMW/C/GC/2
69.
Article 27, paragraph 2, states that where the applicable legislation does not allow
migrant workers and members of their families a benefit, the State party concerned shall
examine the possibility of reimbursing them the amount of contributions made by them
with respect to that benefit on the basis of equality of treatment with nationals. In this
respect, States parties shall provide objective reasons in each case in which the
reimbursement of the said contributions is deemed impossible. A decision not to reimburse
contributions made by a migrant worker or family member must not discriminate on the
basis of his or her nationality or migration status. Furthermore, the Committee considers
that a migrant worker’s entitlement to social security benefits should not be affected by a
change in workplace.
70.
The reference to “contributions” in article 27, paragraph 2, does not imply that
“social security,” under article 27, paragraph 1, refers only to contributory social security
schemes. Such a narrow reading would be contrary to article 9 of the International
Covenant on Economic, Social and Cultural Rights, which recognizes “social security” as
“including social insurance.” Recalling that article 9 of the Covenant applies to all migrant
workers, regardless of their legal status and documentation, the Committee considers that
“social security” in article 27 of the Convention also covers existing non-contributory
social benefits, and that migrant workers in an irregular situation shall have access to such
benefits on a non-discriminatory basis, to the extent that the applicable legislation of the
State party concerned provides for such an entitlement.
71.
The Committee considers that in cases of extreme poverty and vulnerability, States
parties should provide emergency social assistance to migrant workers in an irregular
situation and members of their families, including emergency services for persons with
disabilities, for as long as they might require it. It recalls that even if many migrant workers
in an irregular situation do not participate in contributory schemes, they contribute to
financing social protection schemes and programmes by paying indirect taxes. 32
3.
Right to urgent medical care
72.
Article 28 of the Convention provides for migrant workers and members of their
families to have the right to receive any medical care that is urgently required for the
preservation of their life or the avoidance of irreparable harm to their health on the basis of
equality of treatment with nationals. Article 28, however, read together with other
international human rights instruments, may create broader obligations for States parties to
both instruments. 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. States parties are therefore obliged to ensure that all persons, irrespective of their
migration status, have effective access to at least a minimum level of health care on a nondiscriminatory basis. The Committee on Economic, Social and Cultural Rights considers
this to encompass primary health care, as well as preventive, curative and palliative health
services. The Committee on the Rights of the Child holds that every migrant child is
entitled to the same health care as nationals under article 24 of the Convention on the
Rights of the Child. To that effect, States parties shall ensure, inter alia, that all migrant
workers and members of their families have access to essential medicines and that migrant
children are provided with immunization against the major infectious diseases. They shall
ensure that migrant women have access to appropriate prenatal and postnatal health care,
safe reproductive health services, and to emergency obstetric care.
32
See report of the United Nations High Commissioner for Human Rights to the Economic and Social
Council (E/2010/89), para. 46.
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