CMW/C/GC/2
the Convention, and in particular Part III. Article 7 covers both de jure and de facto
discrimination. In this context, de jure refers to discrimination that exists in the law, and de
facto refers to discrimination that exists in fact or has an effect even though not formally or
legally recognized. States parties shall respect the prohibition of discrimination by ensuring
that their laws, regulations and administrative practices do not discriminate against migrant
workers and members of their families. The Committee is of the view that merely
addressing de jure discrimination will not ensure de facto equality. Therefore, States parties
shall protect the rights under the Convention for all migrant workers by adopting positive
measures to prevent, diminish and eliminate the conditions and attitudes which cause or
perpetuate de facto discrimination against them.
20.
Article 7 prohibits both direct and indirect discrimination against migrant workers.
In line with the jurisprudence of other international human rights mechanisms, indirect
discrimination against migrant workers occurs when a law, policy or practice appears
neutral at face value, but has a disproportionate impact on their rights. For example,
requiring birth certificates for school enrolment may disproportionately affect migrant
workers in an irregular situation, who often do not possess, or have been denied, such
certificates.
C.
Protection of civil and political rights (Part III)
1.
Protection against violence
21.
Migrant workers in an irregular situation, particularly women, are at increased risk
of ill-treatment and other forms of violence at the hands of both private actors, including
employers, and State officials which includes sexual violence, beatings, threats,
psychological abuse, and denial of access to medical care, for example. Under article 16,
paragraph 2, States parties have an obligation to protect all migrant workers and members
of their families against violence, physical injury, threats and intimidation, whether by
public officials or by private individuals, groups or institutions. This obligation requires
States parties to:
(a)
Adopt and implement legislation prohibiting such acts;
(b)
Effectively investigate cases of abuse and violence;
(c)
Prosecute and punish those responsible with appropriate punishments;
(d)
Provide adequate reparation to victims and members of their families;
(e)
Provide human rights training for public officials; and
(f)
Effectively monitor the conduct of State agents, and regulate that of private
persons and entities, with a view to preventing such acts.
22.
States parties are also required to take effective measures to fight all manifestations
of racism, xenophobia or related intolerance against migrant workers and members of their
families, especially those in an irregular situation, such as hate crimes, incitement to hatred
and hate speech, including by politicians and in the media, and to raise public awareness
about the criminal nature of such acts as well as to promote respect for migrant workers’
human rights.
2.
Protection against arbitrary arrest and detention
23.
Article 16 protects the right of migrant workers and members of their families to
liberty and security of person (para. 1), and provides that identity controls of migrant
workers must comply with the procedure established by law (para. 3). Article 16, paragraph
8