09 Aug Migrant workers Right to return in the midst of a global pandemic
The COVID 19 global pandemic which was declared a public health emergency on 11th March 2020 continues to disproportionately affect diverse groups and communities with serious negative impacts to the most vulnerable groups. While some of us in Sri Lanka have resumed our daily activities and is adopting to the new normal, as reported on 27th May 2020, 42,522 fellow Sri Lankans were awaiting to return to Sri Lanka, most of whom are seriously struggling to survive the day in their host countries.
This is mainly due to the closure of non-essential services in the host countries which resulted in most migrant workers receiving less than 50% of their salaries, losing their jobs or even entirely losing their regular income with no hope of revival. Further, the camp type accommodation with minimal facilities, heavily concentrated detention centres, in which social distancing norms are nearly impossible to be upheld, made migrant workers residing in these places fall victim to the virus, resulting in a rapid spread of the virus among them.
As reported by the Sri Lanka Bureau of Foreign Employment (SLBFE) on 16th July, there had been 40 deaths of migrant workers due to the corona virus since mid-march 2020 which includes 37 males and 3 females. It is in this same backdrop that on 27th July 2020, migrant workers employed in two garment factories in Jordan who haven’t received their salaries since March and is in dire need of food and medical supplies, staged a protest in Jordan pleading the Sri Lankan government to facilitate their return to Sri Lanka ensuring the right of over 710 migrants workers stranded in Jordon to return to Sri Lanka with immediate effect. With no solution provided thus far by the government on their repatriation or ensuring their safety and wellbeing in their host country, the only consequence was for them to face a tear gas attack by the police forces in Jordon for protesting to secure their human rights.
A dive into the legal framework of the migrant workers right to return to Sri Lanka
The right of migrant workers to return to their home country stems from the Constitution of the Democratic Socialist Republic of Sri Lanka, the International Commitments Sri Lanka has undertaken as Human Rights obligations by ratifying the Convention on the Protection of the Rights of all Migrant Workers and Members of their Families in 1996 and the Foreign Employment Bureau Act which was enacted to give effect to the international obligations.
Accordingly, Article 14(1) (i) of the Fundamental Rights chapter of the Constitution explicitly recognizes every citizen’s entitlement to the freedom to return to Sri Lanka rendering it a state obligation to give effect to the migrant workers right to return to Sri Lanka. This Article read in line with Article 12 of the Constitution which stipulates that all persons are equal before the law and are entitled to the equal protection of the law, mandates the right to return under Article14 (1) (i) given effect to all migrant workers without discrimination on any grounds.
With regards to the International obligations, Article 1and 7 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families also warrants the protection of the rights of all migrant workers and their families without discrimination while Article 67 provides that State parties should cooperate as appropriate in the adoption of measures for the orderly return of migrant workers to their State of origin.
However, given the dualist nature of Sri Lanka with regard to international law, the primary legislation which was enacted in pursuant to the obligations under the convention is the Sri Lanka Bureau of Foreign Employment Act 21 of 1985 as amended in 1994 and 2009. Accordingly, as per section 15 (m) of the act it is a primary objective of the act to oblige the state to undertake the welfare and protection of Sri Lankans employed out of Sri Lanka which includes their welfare during the final stage of the migration cycle: the return and reintegration of the migrant workers.
In addition to the above, Sri Lanka’s policy framework also warrants the protection of the rights of the migrant workers. As per the National Labour Migration Policy, provisions have been made for the state to ensure that the return and reintegration process takes place with full protection of rights and freedoms, upholding of human dignity with access to resource and opportunities.
However, given the current circumstances of a global pandemic, the aforementioned right to return is subjected to limitations upon the operation of the Quarantine and Disease prevention Ordinance No. 03 of Ordinance 1897. Accordingly, as per sec (3) (1) (c) the Ministry of health is bestowed with the powers to prohibit or regulate the landing of persons or goods from aircraft, vessels or boats either absolutely or unconditionally for the purpose of preventing the introduction of any disease to Sri Lanka and also the spread of any disease in and outside Sri Lanka.
UN Committee on the Protection of the Rights of All Migrant Workers and Members of their Families and UN Special Rapporteur on the human rights of migrants on its Joint Guidance Note on the Impacts of the COVID-19 Pandemic on the Human Rights of Migrants also stated that the obligation of the state to guarantee the right of all migrants and their families to return to the country of which they are nationals must be harmonized with international health standards and guidelines issued by national health authorities, and covers, according to the conditions of each State, measures of protection, access to information and assistance.
Legal adherence and state cooperation so far to uphold the right of return to Sri Lanka
The Sri Lankan Government recognizing its duty to facilitate the return of the expats and migrant workers back to Sri Lanka to ensure their safety and protection, took measures to bring back the expats and migrant workers by arranging special flights to Sri Lanka.
The Kuwaiti Government too recognizing the need to protect the human rights of the migrant workers and their duty to cooperate with the other states granted an amnesty for undocumented expatriates to return to their countries of origin without any fines or travel cost due to the pandemic which notably increased the number of migrants who registered to return to Sri Lanka.
Accordingly, as of May 25th, a total of 5,485 migrants from 20 countries were repatriated and as per the statement of the Minister of Health, 330 out of 466 returnees who were flown into the country on two Kuwait Airways flights free of charge, and 150 from the 270 who arrived from Qatar had been tested positive. Consequently, the increased proportions of the returnee migrants being co-vid patients led to the government to halt the repatriation flight from Qatar scheduled to land on 25th May 2020. As stated by the Director General of Health Services, the temporary suspension of the returnee flights were necessary as the government lacks the required infrastructure to treat the increased number of corona virus patients in the country.
However, the lack of infrastructure to treat the citizens who are tested positive due to the increased number of returnees being tested positive of the virus cannot be accepted as a legitimate excuse for the state to waive its obligations to fulfil the migrant workers right to return unless it could be proven that the state has proactively taken all measures to mobilize all stakeholders who could effectively contribute in providing the necessary infrastructure.
In the failure to repatriate the migrants to Sri Lanka forthwith, the state continues to have the obligation of actively coordinating with the governments and diplomatic missions of the destination states to ensure the welfare of the migrant workers are upheld until their return to Sri Lanka.
Henceforth, while the migrant workers who wish to return to Sri Lanka has the duty to register with their respective embassies in their destination countries stating their need to return to Sri Lanka, the respective officials have the duty to proactively take steps to facilitate their safe stay and return to Sri Lanka. Even though, as reported in the news the failure of the officials to take diligent action even after requesting their assistance calls for a separate discussion, make sure to report their inaction and seek further assistance by contacting the 24/7 hotline of the SLBFE for all are equal before the law and worthy of utmost protection of the constitutionally guaranteed rights.
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