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The Rights of Migrant Workers and their Families

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					Chapter 17: The rights of migrant workers and their families -
Ngā tika ō te hunga manene e mahi ana, me ō rātou whānau


       States Parties undertake, in accordance with the international instruments
       concerning human rights, to respect and to ensure to all migrant workers
       and members of their families within their territory or subject to their
       jurisdiction the rights provided for in the present Convention without
       distinction of any kind such as to 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.
                                              (International Convention on the Protection of the Rights
                                                                                                      1
                                   of All Migrant Workers and Members of their Families, Article 17)


1. Introduction - Timatatanga
The term ‘migrant worker’ is used internationally to refer to ‘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’.2 It includes people who have been granted
temporary work permits or permanent residence, and people who have entered or
remained in a country without a permit (‘illegal immigrants’ or ‘overstayers’). In
essence, it includes the majority of those people in any given country who have not
acquired citizenship by birth, descent or grant of citizenship.
People seek to migrate for a wide variety of reasons, including overseas experience,
lifestyle, environment, opportunities for career advancement or to join family. Among
the most common pressures worldwide are poverty, the inability to produce enough to
support oneself or one’s family, and the experience of war, civil strife, insecurity or
persecution arising from discrimination on the grounds of race, ethnic origin, colour,
religion, language or political opinion.
There is no human right to immigration as such, but migrant workers have all the
human rights contained in the major international human rights treaties. Some human
rights take on a particular significance in the process of labour migration, including
freedom from discrimination; freedom of thought, religion and belief; freedom of
expression and association; the right to privacy, property and security of the person;
the right to family reunification; freedom from arbitrary arrest, detention and
expulsion; the right to language and culture; and the rights to justice, work and health.

2. International context - Ki ngā kaupapa o te ao
The International Covenants on Civil and Political Rights (ICCPR) and Economic,
Social and Cultural Rights (ICESCR) apply to migrant workers and their families as

1
  To view a text of the international human rights instruments, visit the website of the Office of the
High Commissioner for Human Rights http://www.unhchr.ch/. Most of New Zealand’s human rights
obligations are summarised in the Handbook on International Human Rights (2nd ed.) by the New
Zealand Ministry of Foreign Affairs & Trade (2003).
2
  This definition comes from the International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families, Article 2(1).
they do to everyone else. The same is true of the Conventions on the Elimination of
Racial Discrimination (CERD), the Convention on the Elimination of Discrimination
against Women (CEDAW) and the Convention on the Rights of the Child
(UNCROC).
CERD has a particular relevance to migrant workers, because many migrants work in
countries where they constitute a racial or ethnic minority. Their consequent visibility
and more vulnerable status often make them a target of xenophobia or racial
discrimination.
The early United Nations Conventions do not make specific reference to migrant
workers, and international regulation of migrant labour has largely been addressed
through the International Labour Organisation (ILO).3 The two key ILO conventions
are No 97 on Migration for Employment (1949) and No 143 on Migrant Workers
(Supplementary Provisions) (1975).
The ILO Migration for Employment Convention, 1949 (No. 97) provides the
foundations for equal treatment between nationals and regular migrants in areas such
as recruitment procedures, living and working conditions, access to justice, tax and
social security regulations. It sets out details for contract conditions and the
participation of migrants in job training or promotion, and deals with provisions for
family reunification and appeals against unjustified termination of employment or
expulsion, as well as other measures to regulate the entire migration process.
The ILO Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143)
was adopted at a time when concern about irregular migration (including smuggling
and trafficking) was growing. It sets out requirements for respecting the rights of
migrants with an irregular status, while providing for measures to end clandestine
trafficking and to penalise employers of irregular migrants.
Continuing international concern about the rights of migrant workers led to the
adoption by the United Nations of the International Convention on the Protection of
the Rights of All Migrant Workers and Members of Their Families (MWC) in 1990.
The Convention is based on concepts and language drawn from the two ILO
Conventions. It extends considerably the legal framework for migration, the treatment
of migrants and the prevention of exploitation and irregular migration. It entered into
force on 1 July 2003. However, only 22 countries have so far ratified it, none of
which have large numbers of inward rather than outward migrants. No industrialised
host countries have ratified it.
The renewed focus on migrant workers was a response to the trend towards the
globalisation of labour as well as trade, services and information. The ILO has
commented that globalisation is having a profound effect on human displacement and
mobility, as a result of persistent poverty, growing unemployment, loss of trading
patterns and what has been termed a growing crisis of economic security in
developing countries. At the same time, demand for migrant labour in developed
countries (Taran, 2003) is likely to grow:
         Changing economic and demographic trends are combining to increase
         the demand for foreign labour in most industrialised countries. On the
         one hand, demographic trends are translating into aging populations,
         older median age workforces, more retired people dependent on fewer
3
    For the ILO conventions, visit http://www.ilo.org/



                                                                                      2
         actively employed, and fewer entries into labour markets. On the other
         hand, the growth of dual labour markets under globalisation is expanding
         the number of precarious jobs which national workers are reluctant to
         take. Small and medium sized companies and labour-intensive economic
         sectors do not have the option of relocating operations abroad. Responses
         include downgrading of manufacturing processes, deregulation, and
         flexibilisation of employment, with increased emphasis on cost-cutting
         measures and subcontracting. Resulting employment needs are met only
         partially or not at all by available or unemployed national workers, for
         reasons of minimal pay, degrading and dangerous conditions, and low
         status.
There has been considerable controversy over the promotion, ratification and
implementation of the ILO conventions and the 1990 Migrant Workers Convention,
highlighting the tension between a human rights approach to social protection and the
increasingly deregulated globalised use of labour. Although there has been relatively
widespread ratification of Convention 97, there has been less ratification of
Convention 143.
The ILO has identified seven essential elements of national and regional policy on
migration that every State, its social partners and civil society need to address (Taran,
2002). These are:
a human rights standards-based foundation for comprehensive national migration
    policies and practices, to ensure social legitimacy and accountability
an informed and transparent labour migration admission system, designed to respond
    to measured, legitimate needs and taking into account domestic labour concerns
enforcement of minimum national employment conditions’ norms in all sectors of
    activity, to prevent exploitation of migrants
challenging discrimination and xenophobia, as major issues affecting migrant workers
institutional mechanisms and practical measures to ensure coordination of
    Government and social partners,4 supervision of recruitment and administration of
    admissions, recognition of qualifications, and provision of health and social
    services and other aspects of managing labour migration
development aid, trade and investment policies to redress economic, trade and
    development disadvantages
possibilities for labour mobility, especially in regional integration, to provide optimal
    allocation of labour in larger labour markets, including freedom of movement
    within regional economic cooperation areas (p.2).
There is a fundamental tension underlying the issue of immigration policy between
the human rights of migrants and the largely economic reasons that prompt countries
to attract and select them for their labour. International human rights standards
provide a tool to manage this tension in a principled and transparent manner.
The ILO estimates that at the beginning of the 21st century there are 175 million
people living outside their countries of origin, of whom 120 million are migrant
workers and their families. As of 1995 there were 20 million in Africa, 30 million in
Europe, 18 million in North America, 12 million in Central and South America, 9
million in the Middle East and 7 million in South and East Asia (Taran, 2002).

4
    ‘Social partners’ is the term used by the ILO for employers’ and workers’ organisations.


                                                                                               3
3. New Zealand context - Ki ngā kaupapa o Aotearoa
Civil and political rights are guaranteed under the New Zealand Bill of Rights Act
1990 (BoRA) , and generally apply equally to citizens and non-citizens.
The Human Rights Act 1993 deals with unlawful discrimination on the grounds of
race, colour, and national or ethnic origins, the incitement of racial disharmony and
racial harassment. Section 149D of the Immigration Act 1987, which governs
immigration in New Zealand, prevents the Human Rights Commission from
investigating alleged discrimination in the Immigration Act and under policy
developed pursuant to that Act. Only complaints of alleged discrimination in New
Zealand Immigration Service (NZIS) service delivery can be accepted. This is based
on the argument that immigration is, by its nature, discriminatory. In 2004–2005,
NZIS is reviewing aspects of the Immigration Act.
NZIS, which is part of the Department of Labour, operates under the Immigration Act
1987, issuing visas and permits for people coming here to visit, work, study, or live.
The NZIS provides policy advice to Government and is responsible for ensuring
compliance with New Zealand’s immigration laws. It is also responsible for the
refugee programme, and has a role in helping migrants and refugees to resettle in New
Zealand.
Australian citizens are exempt by regulation from the requirement to hold a residence
permit, as are persons covered by diplomatic privileges and immunity and certain
other classes of person (s. 11 Immigration Act). Australian residents do not have to
obtain a visa, but are generally issued with a residence permit on arrival. All other
non-New Zealand citizens are required to have a visa or permit to reside in New
Zealand (for these purposes, the people of Niue, Tokelau and the Cook Islands are
regarded as New Zealand citizens). There are a number of categories of visas and
permits, namely resident, returning resident, visitor, worker, student, and limited
purpose. Categories under which people may apply for residence visas and permits
are:
the skilled migrant category, in which applicants are able to lodge an expression of
     interest and may then be invited to apply if they have the required number of
     points over a range of criteria, and meet required standards of health, character
     and English language competency
the business category, which includes subcategories of investors, entrepreneurs, long
     term business and employees of relocating businesses
the family category for people in a stable relationship with a New Zealand citizen or
     resident, or who have immediate family members in New Zealand, or who are the
     dependent children of New Zealand citizens or residents
the family quota category, for wider family members sponsored by a New Zealand
     citizen or resident and who do not qualify for residence under any other category
the refugee family quota category, for families of refugees who do not fit into any
     other category
 special residence categories, comprising the Samoan quota scheme (up to 1,100
     people per year), the Pacific access category (250 from Tonga, 250 from Fiji, 75
     from Tuvalu, and 75 from Kiribati), and Pitcairn Islanders.
In 2002–2003, there was a total of 48,538 approvals. Of these, 62 percent were in the
skilled and business categories, 30.5 percent in the family categories, and 6.8 percent



                                                                                      4
in the international/humanitarian categories. The new skilled migrant category was
introduced with effect from 1 December 2003.
The NZIS’s operational policy is set out in the NZIS Operational Manual, which visa
and permit branches follow in the administration of Government policy. The Manual
is subject to regular adjustment to reflect changes in policy.
The Citizenship Act 1977 deals with New Zealand citizenship. Citizenship can be
acquired by birth, descent or grant. Non-New Zealand citizens are defined as ‘aliens’
for the purposes of the Act, with the exception of Commonwealth citizens (British
subjects), British Protected Persons, and Irish citizens. To be granted citizenship an
applicant is generally required to have been ordinarily resident in New Zealand for a
period of three years (this does not cover illegal residence), be entitled under the
Immigration Act 1987 to be in New Zealand indefinitely, be of good character, have a
sufficient knowledge of the responsibilities and privileges attaching to New Zealand
citizenship, have sufficient knowledge of the English language, and intend to continue
to reside in New Zealand or work for the Government, for an international
organisation of which New Zealand is a member, or for a New Zealand employer
overseas. The residential qualification may be waived for citizens of Niue, Tokelau
and the Cook Islands (who enjoy New Zealand citizenship rights). The Citizenship
Act 1977 is administered by the Department of Internal Affairs.

4. New Zealand today - Aotearoa i tenei rā
New Zealand is historically a nation of migrants. All New Zealanders are migrants or
descendants of migrants, either through the original migration of Māori from the
Pacific, or through settlement subsequent to Captain Cook’s visits to New Zealand in
the eighteenth century. A significant proportion of New Zealanders are themselves
migrant workers in other countries, especially Australia, the United Kingdom and
Ireland. In the 2001 Australian Bureau of Statistics Census, for example, 355,000
people (of whom 14 percent were Māori) gave New Zealand as their country of birth,
and the number of people of New Zealand descent is closer to half a million. The total
number of New Zealand migrant workers and their families in other countries is
estimated to be in the region of one million, equivalent to a quarter of New Zealand’s
resident population. The number of New Zealand residents born overseas was nearly
700,000 in 2001 (Statistics New Zealand, 2002). The rights of migrant workers and
their families are thus a significant issue for New Zealanders at home and abroad.

The Treaty of Waitangi
The Treaty of Waitangi has been described as the first official New Zealand document
to deal with structured migration and to provide for the flow of people, in the context
of that time (Bedford, 2002a). In the English language version of the Treaty, the
preamble states that Her Majesty Queen Victoria of the United Kingdom:
     has deemed it necessary, in consequence of the great number of Her
     Majesty’s subjects who have already settled in New Zealand, and the
     rapid expansion of Emigration from both Europe and Australia which is
     still in progress, to constitute and appoint a functionary properly
     organised to treat the Aborigines of New Zealand for the recognition of
     her Majesty’s sovereign authority over the whole or any part of those
     islands.




                                                                                     5
Immigrants or migrant workers?
New Zealand discussion on migration is usually framed in terms of ‘immigration’
rather than ‘migrant workers’. It often centres on more recent immigrants from non-
traditional source countries, such as Asia, Africa and the Middle East, and ignores
immigrants from Australia, the United Kingdom, Ireland, the rest of Europe and
America, who between them constitute by far the largest proportion of migrants. The
Convention definition of migrant workers as ‘persons who are to be engaged, are
engaged, or have been engaged in a remunerated activity in a State of which they are
not nationals’ is more inclusive in this sense, and also extends to New Zealanders who
are themselves migrants in other countries while retaining their New Zealand
citizenship.
Recruitment of both skilled and unskilled workers has been the dominant feature of
New Zealand immigration policy since the 19th century (particularly from Britain, but
also including the recruitment of gold miners from China). Only after World War II
was the recruitment net widened to include Western Europe. The term ‘migrant
labour’ was not widely used until the arrival of large numbers of Pacific workers in
the 1970s, coinciding with similar trends of ‘illegal’ migration elsewhere.5 Since then,
significant numbers of skilled and unskilled migrant workers have been recruited
from various countries in the Pacific, Asia and Africa (particularly China, Hong
Kong, Taiwan, Korea, India and South Africa), along with continuing migration from
the United Kingdom, Europe and Australia. Recent changes to immigration policy
have placed a much stronger and explicit emphasis on recruiting people who have the
necessary skills to meet the needs of the New Zealand economy.
One view of New Zealand immigration in the twenty-first century suggests that ‘New
Zealand’s reliance on immigration from Asia and part of Africa will intensify during
the early twenty-first century, as outflows of skilled New Zealanders to work in
Australia, North America, Europe and Asia increase, and immigration from traditional
sources in Europe and the Pacific (Fiji excepted) remains stable. The composition of
New Zealand’s population will continue to exhibit increasing diversity of culture and
lifestyle’ (Bedford, 2002b, p.59-60).

New Zealand statistics
The statistics in Table 1 on the number of people approved for residence in New
Zealand provide a snapshot of recent permanent migration in New Zealand.
Table 1: The number of people approved for residence in New Zealand between
1992–1993 and 2002–2003

           Financial Year                       Number of People

2002/2003                                             48,538

2001/2002                                             52,856

2000/2001                                             43,648

1999/2000                                             34,808


5
 Comparisons with overseas patterns of labour migration were highlighted, for example, in Temporary
Labour Migration between Tonga and New Zealand, by Joris de Bres and Rob Campbell (ILO
International Labour Review, December 1975).


                                                                                                  6
1998/1999                                       28,469

1997/1998                                       29,184

1996/1997                                       33,683

1995/1996                                       54,437

1994/1995                                       50,761

1993/1994                                       33,521

1992/1993                                       29,647


Most of these people would be covered by the definition of migrant workers and their
families. In 2001–2002, the largest group of those approved for residence (24 percent)
came from north-east Asia, with the second and third largest groups from southern
Asia (19 percent) and Europe (17 percent). The majority, some 59 percent, were
approved for residence in what was then the General Skills Category (NZIS, 2002).
Some 47 percent of New Zealand’s migrants have settled in the Auckland area.

Compliance with international treaties
New Zealand has ratified ILO Convention 97 on Migration for Employment, but not
ILO Convention 143 on Migrant Workers (Supplementary Provisions) or the
International Convention on the Rights of Migrant Workers and their Families.
New Zealand has entered a reservation against the Convention on the Rights of the
Child in relation to children illegally in New Zealand – allowing the State to continue
to ‘distinguish in law and practice between persons according to their authority to be
in New Zealand’. Despite Government consideration of this reservation in 2002, and
some voices raised for its removal, the reservation remains in effect.
New Zealand generally complies with the provisions of ILO Convention 97. It does
not comply with many aspects of the ILO Migrant Workers (Supplementary
Provisions) Convention or the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families. Although the
Government has considered ratification, the significant number of issues of non-
compliance presents obstacles in terms of New Zealand’s approach to international
treaties, which is not to ratify if a significant number of reservations would need to be
made. Some of these could be addressed through changes specifically relating to
migrants, while others would require changes that would affect all citizens. It would
be possible, however, to identify those areas where non-compliance can be addressed
relatively simply with a view to improving conditions for migrant workers and their
families. These include certain issues of discrimination in the selection of applicants
for residence, access to free education for the children of migrants who are not
residents (including those who are not in a regular situation), access to pre-settlement
information, access to social services, and opportunities to seek employment. The
proposed review of the Immigration Act 1987 provides an opportunity to consider
ways to reduce non-compliance with the Convention and affirm the human rights of
migrant workers and their families, even if ratification is not considered appropriate.




                                                                                       7
Framework for considering policy and practice
The seven essential elements of national and regional policy on migration identified
by the ILO provide a useful framework in which to consider current New Zealand
policy and practice, including feedback from the Action Plan consultation process.
These are:
human rights standards for national policies and practices
an informed and transparent labour migration admission system
enforcement of minimum national employment conditions
challenging discrimination and xenophobia
institutional mechanisms and practical measures
development aid, trade and investment policies
 possibilities for labour mobility.
In the Action Plan consultation, 37 of the 166 groups identified immigration as a key
category of human rights. Issues relating to migrants were also frequently raised by
the 66 groups that prioritised race relations issues.

Human rights standards
The ILO notes that a foundation for comprehensive national migration policies and
practices based on standards of human rights enhances both social legitimacy and
accountability. The aim should be to ensure that the basic human rights of migrant
workers are protected at all stages of the migration process, and that this is understood
and supported by the public. It is important to note, however, that there is no right to
immigration as such.
As noted earlier in this chapter, the Immigration Act 1987 does not explicitly refer to
the human rights of migrant workers, and it specifically excludes the Human Rights
Commission from investigating alleged discrimination in the Act and under policy
developed pursuant to the Act. However, once migrant workers arrive in New
Zealand, they enjoy all the rights conferred by the BoRA, the Human Rights Act 1993
and other legislation.
Human rights of particular relevance to migrant workers prior to acceptance are the
right to natural justice and freedom from discrimination on general grounds such as
race, sex, sexual orientation and religion in immigration policies and processes.
Consultation
A concern was expressed in the consultation that the greater English language
competency requirements for skilled migrants under recent changes to immigration
policy might constitute indirect discrimination against people from non-English
speaking backgrounds who might qualify in other respects.
Under the Immigration Act 1987, not all immigration decisions taken by the
Immigration Service on individual cases can be re-examined (whether in fact or law)
through access to an appeal or review body.
In relation to the right to family life, a number of consultation participants reported
barriers to family reunification. Problems included the limited quotas for family
reunification, and immigration criteria that did not recognise the different forms of
family structures (particularly extended family) that exist in different cultures. Many




                                                                                       8
participants feared for the safety of family abroad. Problems included lengthy waits –
many people reported missing their families and their country.
Participants thought that reuniting families was very important. One migrant said:
‘We need our families here.’ Another group thought that ‘when an extended family is
applying to immigrate then the whole family should be considered collectively as one
application.’ Many people found various aspects of their immigration experience
difficult and, for many, coming to New Zealand meant separation from families
overseas. Many expressed concern about this separation, and felt that the system
treated them as commodities or numbers instead of recognising their plight as people.
A problem was identified in relation to family break-up, particularly where migrant
women who are married to New Zealand citizens or permanent residents suffer
domestic violence. They can be left in a state of limbo where they are unable to access
free or subsidised social services while their status is reassessed.
People seeking to migrate to New Zealand who have a disability or disease may face
extra barriers to having their application approved. For example, there have been
recent measures to limit the immigration of children to New Zealand who have
particular disabilities that may require certain levels of health care and educational
assistance.
Some consultation participants thought that immigration policies were not transparent
enough. Others felt the lack of transparency was exacerbated by ‘constantly changing
immigration policy’. Some thought that the points system was unfair, with ‘too much
emphasis on money and qualifications’ and that it did not take into account ‘real life
situations’.
Various groups considered that their viewpoint on a broad immigration policy for
New Zealand was not being heard. The range of views expressed during the
consultation indicates that there is no widespread agreement on what that policy
should be.
One person said that immigration ‘works well and [is] very important to drive the
economy’, while others thought New Zealand needs more people but called for a
‘planned approach … [that] needs thought on integrating different cultures’.
Some felt that immigration is ‘getting out of hand’, particularly in Auckland.
Comments from a Bay of Plenty group were that immigration laws should be much
stricter to limit the numbers of new migrants, and to ensure that they spoke English.
Another group said: ‘New Zealand should consider the Pacific and its peoples first.’ A
Pacific group wanted the Government to ‘continue the quota system for Pacific
migrants’ and provide more assistance for people applying for permanent residence.
Complaints received by the Human Rights Commission record that many people
complain of lengthy delays in processing applications for permanent residence. This
was referred to by some participants as a cause of severe stress to applicants.
A Pacific group wanted ‘reduced fees on application to immigrate’ and the regulation
of consultants. Participants in this group proposed that migrants be given ‘fair
treatment as they give to refugees’.




                                                                                     9
Rights of the child
Children can be said to be invisible migrants, given the difficulties they have in being
heard and having their immigration experiences taken into account. The particular
vulnerability of children is exacerbated in the immigration context.
Two of the children’s consultation groups mentioned immigration and human rights.
One group simply identified immigration as an issue, and the other was concerned
about family members who are not in New Zealand.
Because of New Zealand’s reservation in relation to the Convention of the Rights of
the Child, children whose parents are in New Zealand on temporary work permits,
and in particular children whose parents are in New Zealand illegally, may have
difficulties accessing education, housing, vocational, social and health services.
Another issue is the deportation of people who have New Zealand-born children.

An informed and transparent admission system
According to the ILO, an informed and transparent labour migration admission
system should be designed to respond to measured, legitimate needs, taking into
account domestic labour concerns. This requires regular labour market assessments.
The recently introduced system of inviting expressions of interest under the skilled
migrant category and then assessing these in terms of identified labour market
shortages generally meets these criteria. Some employers have complained, however,
that there is insufficient planning and responsiveness in terms of requirements for
seasonal work in particular. On the other hand, there are indications that the recent
changes to immigration policy in relation to requirements for increased English
language competency are having the effect of establishing indirect barriers to
otherwise suitable prospective migrants from non-English speaking countries, with a
significant drop in the number of approvals for skilled migrants from Asia in
particular.
Immigration policy also draws on settlement research. The NZIS funds both long-
term and short-term research projects, generally using monies collected from the
Migrant Levy. Findings from both types of research are presented in the Immigration
Research Programme’s Summary of Findings 1997–2002. Two long-term research
projects, The Longitudinal Immigration Survey (LisNZ) and Refugee Voices, look at
the settlement experiences of migrants and refugees (quota and spontaneous)
respectively (Fletcher, 1999). The NZIS longitudinal survey is using this information
to ‘evaluate the impacts of immigration policy, to assess the net benefits of
immigration, and to improve immigration selection and settlement policies’ (NZIS,
2003). The new settlers research programme at Massey University and at other
universities is providing an increasing body of research work on migrant settlement.

Minimum employment conditions
The ILO notes that enforcement of minimum national employment condition norms in
all sectors of activity is needed to prevent exploitation of migrants, to criminalise
abuse of persons, and trafficking, and to discourage irregular employment.
The Employment Relations Act 2000, the Health and Safety in Employment Act
1992, the Minimum Wage Act 1983, the Holidays Act 2003 and other employment-
related legislation meet these criteria. Enforcement mechanisms are generally robust,
and there are formal complaint mechanisms available where the minimum conditions
are not met.


                                                                                     10
While trafficking and exploitation of ‘illegal’ workers constitute serious criminal
offences, there is no comprehensive system for identifying these issues, and cases are
dealt with by the police and immigration authorities when they come to light. Where
they have been uncovered, it has mostly been in the horticulture, hospitality and sex
industries.

Consultation
There is, however, a range of employment issues that were commented on by
consultation participants.
One issue was the recognition of educational and professional qualifications. Several
consultation participants thought that the ideal situation would be to remove current
restrictions so that migrants were able to find work in their own fields. Another group
said that there should be more realistic assessment of people’s skills and more open
attitudes on the part of some professional associations.
Another group that included new migrants made positive comments about improved
and integrated programmes that aimed to ‘attune qualifications to the labour market’.
Participants in this group hoped that ‘migrants will now be better matched to jobs
available in New Zealand’. They were also pleased that New Zealand is ‘inviting
good skilled migrants’.
Research by Dr Anne Henderson confirms that job seekers who speak English with a
non-Anglo-Saxon accent have larger hurdles to surmount in obtaining employment in
New Zealand than those who speak English without such accents (Henderson, 2003).
This finding was supported by the research of the EEO Trust, which found that those
most likely to face ‘unfair barriers to gaining employment’ included those ‘with a
non-New Zealand accent’ (Burns, 2000).
A Pacific peoples’ group noted that ‘coming here is good’ and ‘to live in New
Zealand is good for our future’. This group reported that working conditions were
better in New Zealand, with more jobs. On the other hand, concerns have been
expressed that migrants are putting pressure on the local job market.

Discrimination and xenophobia
The ILO notes that discrimination and xenophobia against non-nationals is one of the
major social and political challenges of our time. While discrimination on the grounds
of race, colour, ethnic and national origins is unlawful in a range of public contexts
under the Human Rights Act 1993 in New Zealand, migrants nevertheless report that
they experience it.

Consultation
Consultation highlighted a ‘lack of tolerance for migrants and migrant communities in
New Zealand’, and noted discrimination experienced by migrants as a human rights
issue.
Migrants and refugees reported discrimination in education, employment, housing and
health in particular. They reported being placed in poor housing, being discriminated
against in jobs and being ineligible for benefits because of residency requirements.
Muslims reported abuse when manifesting their religion, particularly after the terrorist
attacks on the United States on September 11, 2001..




                                                                                     11
Participants thought that new settlers needed protection from prejudice and abuse,
particularly on arrival, in order to assist them in adjusting to New Zealand life.
Several people were concerned about the negative stereotyping of migrants, which
they felt encouraged racism and discrimination.
Several consultation groups reported that the attitudes of some New Zealanders made
settlement difficult, and one participant identified a ‘need to shift society’s attitude’.
Migrants reported encounters with negative, offensive, racist, blaming and hostile
behaviours. These ranged from name calling and being spat at in the supermarket and
the street, through perceived negative political and media messages, to physical
violence.
Language-related issues6 may raise discriminatory barriers. These include access to
interpreters and translations in public sector services, access to English language
education, and the limits that employers place on the ability of migrants to use their
language in the workplace. The Office of Ethnic Affairs operates a Language Line to
provide interpretation services to clients of major government departments.

Institutional mechanisms and practical measures
The ILO considers that institutional mechanisms and practical measures are needed to
ensure coordination between central and local government and non-governmental
organisations working with migrants across the whole range of settlement issues.
Recent immigration policy changes have placed a greater emphasis on successful
settlement of migrants, including the establishment of migrant resource centres, and
coordinated planning at the regional level between government departments, local
councils, employer and community groups. A number of local settlement strategies
and action plans have been developed by local authorities, and the 2004 Budget
provided further investment for a national settlement strategy and migrant settlement
programmes.
There have been a number of initiatives by employer and professional groups and
education providers to assist migrants to overcome the barriers to employment.
Among these are the Auckland Branch of the Institute of Professional Engineers
(IPENZ), which has a specialised migrant committee to provide transition courses
(HRC, 2004a), and Fraser High School in Hamilton, which has run successful migrant
work placement courses (HRC, 2003b). The Employment Report produced by the
Human Rights Commission for the New Zealand Action Plan for Human Rights
(NZAPHR) contains a case study of the Canterbury Migrant Employment Project
initiated by the Canterbury Chamber of Commerce (HRC, 2004a). The New Zealand
Federation of Business and Professional Women has also undertaken a number of
projects with migrant and refugee women following their conference on the subject in
2003 (HRC, 2004b).

Consultation
Consultation participants highlighted the need for better-funded orientation and
training programmes for new migrants and better responsiveness to migrants already
in the country.



6
  Language is not a ground of prohibited discrimination in New Zealand, but related discrimination
issues can nonetheless arise in relation to the ground of national or ethnic origins.


                                                                                                     12
Several people commented on the lack of adequate services and support for new
settlers. Some felt that migrants needed more opportunities to learn English. Issues
included access to interpreters, work and housing. Others said that more funding
should be available for organisations that offered orientation.
A study in 2000 of the settlement assistance needs of recent migrants (Migration
Research Group, 2000) revealed that migrants ‘often had difficulty accessing services.
Language barriers, insufficient information, and a lack of transport are some of the
barriers faced by migrants wanting to utilise these services. In addition, services often
fail to meet the needs of specific groups, such as older migrants and refugees.’
One group that included both migrants and people working with migrants made many
suggestions for improving services. They suggested improvements to orientation
programmes for migrants, and wanted the programmes to be bilingual, with greater
focus on integration. They also proposed that more specialised staff be appointed to
work with people and that employers be educated as to the benefits of employing
migrants, the dynamics of international markets and the importance of international
work experience.
NZIS research highlights the importance of settlement processes that build family and
social networks. ‘Family and social networks are central to the initial stages of the
settlement process. While these networks develop and operate independently of
policy, policy can assist by providing information and, where needed, resources to
foster family and community networks’ (Fletcher, 1999).

Development aid, trade and investment policies
Labour migration occurs in the context of global economic disparity, and overseas aid
and development policy is an important component of reducing economic and social
pressures on people to migrate, particularly where this leads to unauthorised migration
or overstaying temporary work permits.
New Zealand’s international aid and development policy is focused on poverty
reduction, and a significant proportion of the aid budget is directed to Pacific
countries that are also a major source of labour migration to New Zealand.
The recent Parliamentary Select Committee report on a petition to repeal the
Citizenship (Western Samoa) Act 19827 recommended that issues of concern to
Samoan migrants be addressed in the broader context of a review of the Treaty of
Friendship between New Zealand and Samoa, recognising the links between
development and migration.

Labour mobility possibilities
The ILO notes that freedom of labour to move geographically, transfer jobs and
change employers is essential to ensuring the most productive use of labour, including
both skilled and less-skilled migrants. The European Union is an example of a
regional area where barriers to the free movement of legal workers between member
countries have been reduced.
Similarly, there is free movement of people between Australia and New Zealand, and
Niueans, Tokelauans and Cook Islanders have unrestricted access to New Zealand.
There are also annual quotas for migrants from a number of other Pacific countries,
the largest (1,100) being Samoa. However, the Parliamentary Select Committee report
7
    Report of the Government Administration Select Committee to Parliament, May 2004.


                                                                                        13
on the Citizenship (Western Samoa) Act 1982 noted that there were complaints about
the criteria for residence approval, the use of which meant that less than half of the
annual quota was being filled. Similar complaints concerning the quotas for other
Pacific countries have prompted the Government to announce a review of the criteria.

5. Conclusions - Ngā whakamutunga
Immigration policy remains a subject of current debate in New Zealand. There are
differing views on its economic benefits and on the extent to which new migrants
integrate into New Zealand society. Migrants themselves express strong views on the
processes involved in migration, and the challenges they face in achieving successful
settlement and integration.
Focusing on a broad definition of migrant workers and their families rather than on
‘immigration’ in the abstract highlights the fact that a significant proportion of New
Zealanders are migrants. Migrant workers are not limited to recent migrants from
non-traditional source countries, but also include a significant proportion of all New
Zealand residents and an equally significant number of New Zealanders living and
working overseas, all of whom have the same human rights.
An assessment of New Zealand’s policy and practice in relation to migrant workers in
terms of the ILO policy framework and feedback from consultation participants
indicates the following:
Where New Zealand does well - Ngā mahi pai e oti nei i Aotearoa
The rights of migrant workers and their families are generally well catered for in New
   Zealand legislation and policy.
Immigration policy is informed by labour market needs and is transparent (e.g. the
   selection criteria are published).
Employment laws protect the rights of migrant workers and there are effective
   enforcement mechanisms.
 Recent Government initiatives focus on the active recruitment of the employment
   skills New Zealand needs.
There is an ongoing focus on breaking down barriers to employment for migrants.
   Successful private sector schemes have recently been established by regional
   chambers of commerce, and some steps have been taken to improve the process of
   recognition of overseas qualifications.
Discrimination on the grounds of race, colour, and ethnic or national origins is
   prohibited by law.
 Changes in immigration policy in recent years have resulted in a stronger focus on
   and investment in successful settlement outcomes, including increased research on
   issues facing migrants and the establishment of migrant resource centres.
   Significant additional investment in settlement programmes (including a National
   Settlement Strategy) was included in the 2004 Budget.
A number of local authorities, in cooperation with central government departments
   and non-governmental organisations, have either developed or are in the process
   of developing settlement strategies and plans for new migrants and refugees.
 A ‘language line’ offering telephone interpretation services to clients of a number
   of key public agencies has been established by the Office of Ethnic Affairs.



                                                                                    14
   New Zealand’s overseas aid and development policy makes a contribution to
    poverty reduction, and is particularly focused on the Pacific, which is a major
    source of migrant workers and their families in New Zealand.
   There is a degree of regional freedom of movement for migrant workers, with
    complete freedom between Australia and New Zealand, and from Niue, Tokelau
    and the Cook Islands to New Zealand. There are also migration quotas for a
    number of other Pacific Island countries.
Where we need to do better - Kia piki ake te pai i roto i enei wahanga
New Zealand has not ratified two of the major international treaties concerning
   migrant workers and their families. While there are significant obstacles to
   ratification in terms of New Zealand’s principled policy of not ratifying
   international treaties without first ensuring compliance, the treaties could be used
   as a basis for reviewing legal provisions relating to migrant workers and their
   families with a view to increasing compliance. The Immigration Act 1987 is
   focused on administrative procedures, and does not provide specifically for the
   human rights of migrants. Section 149D explicitly excludes the Act and policy
   made under the Act from the jurisdiction of the Human Rights Commission. The
   proposed review of the Act provides an opportunity to reconsider these issues.
There are indications that the recent changes to immigration policy in relation to
   increased requirements for English language competency are having the effect of
   establishing indirect barriers to otherwise suitable prospective migrants from non-
   English speaking countries, with a significant drop in the number of skilled
   migrant approvals from Asia in particular.
The criteria for Pacific migrant quota schemes appear to be too restrictive to achieve
   the annual quota in a number of cases, including Samoa.
There is evidence that many new migrants experience racial discrimination, racial
   harassment and racial abuse. Identified barriers to employment for migrants need
   to be addressed through working with employer groups. More information needs
   to be provided to the public about the economic, social and cultural contribution
   of migrants and about the different cultures of migrant communities in order to
   foster informed debate and harmonious relations.
While some local authorities have developed settlement strategies in association with
   central government and community organisations, such strategies are not in place
   in all areas that have a significant number of new settlers. The particular health
   and welfare needs of migrants, including accessibility of services to people of
   different cultures, need to be addressed. New migrants need better access to
   English language training, and information about New Zealand society and their
   rights.




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