Legal Rights of Skilled Migrants: Council of Europe

Legal Rights of Skilled Migrants: Council of Europe

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In an increasingly globalized world, the movement of skilled professionals across borders is a phenomenon that shows no signs of slowing down. The legal rights of these migrant workers, who are essential cogs in the wheel of global commerce and innovation, become a focal point of discussion across various strata of governance—be it national, regional, or international. At the intersection of labour rights, immigration policy, and international law, there exists a complex web of statutes, directives, and conventions designed to govern the rights and responsibilities associated with professional migration. This essay aims to unravel this intricate legal tapestry by examining the contributions and limitations of key international organizations—specifically, the United Nations (UN), the European Union (EU), the Council of Europe, and the European Court of Human Rights (ECHR). We will delve into the unique legislative powers each entity wields, the principle of direct effect, and the legal instruments that are especially relevant to professional migrant workers. The comparative analysis will not only highlight how these legal frameworks intersect and diverge but also assess their real-world implications for the legal rights of professional migrants.

In seeking a comprehensive overview of the international legal rights of working migrants, this article will focus on the legislative frameworks set forth by the United Nations, the European Union, the Council of Europe, and the European Court of Human Rights. Collectively, these bodies extend their influence to 213 unique countries: the UN's 193 member states globally, the EU's 27 European countries, and an additional 20 European nations uniquely under the Council of Europe. By examining these entities, we aim to offer an expansive view of the legislation and norms shaping migrant workers' rights across a broad geographical and political spectrum.

Each of these bodies plays a unique and crucial role in influencing the legal frameworks surrounding migration and human rights. The UN sets the global benchmarks, including guidelines and conventions on human and migrant rights. The EU offers an example of a supranational entity with its own intricate legal system that has a direct impact on its member states. The Council of Europe, which is distinct from the EU, zeroes in on the promotion and protection of human rights, democracy, and the rule of law across Europe, including for migrants. The ECHR acts as the judicial authority that interprets and enforces the European Convention on Human Rights.

The UN serves as a global moral compass, wielding soft power to influence norms and behaviours around human rights, including those of migrants. While UN law is not directly applicable in EU member states unless ratified, the ethical and legal standards set by the UN can influence EU laws and regulations. For example, the Universal Declaration of Human Rights has inspired various human rights norms within the EU. The EU often aligns its foreign and domestic policies with UN objectives. For example, the EU's policies on development aid, climate change, and human rights are often in line with UN resolutions and agendas. The EU, on the other hand, exercises considerable legislative power within its member states, notably through principles like "direct effect," allowing certain regulations and directives to become part of national law without requiring additional legislation. The Council of Europe, distinct from the EU, champions human rights, democracy, and the rule of law, requiring member states to ratify conventions like the European Convention on Human Rights (ECHR) to make them binding. Finally, the European Court of Human Rights serves as the judicial arm interpreting the ECHR, and its judgments are binding on member states of the Council of Europe.

While the EU maintains its own legal system, it frequently aligns with UN objectives in areas such as development aid, climate change, and human rights. The two organizations collaborate on global missions like peacekeeping and humanitarian aid. Moreover, although UN resolutions aren't automatically binding on EU countries, UN-established norms often influence EU laws. All EU member states are also part of the UN, and they often act in concert within the global body. The EU even maintains a delegation to the UN to foster ongoing dialogue. Thus, despite their separate legal orders, the UN's influence is palpable within the EU's legislative and policy landscape.

In the first part of this series, we'll explore the Council of Europe's approach to the legal rights of migrants, then move on to the European Union's stance, and finally examine the United Nations' contributions to these issues. In our concluding blog, we will outline actionable steps that Talent Acquisition Management firms and employers can take to fulfil these legal obligations.

Council of Europe:

1. European Convention on Human Rights (ECHR)

    • Relevance: Article 4 and 8 provide for the prohibition of forced labour and the right to private and family life, which are issues often faced by migrant workers.
    • Example: A Turkish household worker in France would be protected against forced labour and would have her right to private and family life respected under this Convention.

2. European Social Charter

    • Relevance: Articles 1, 18, and 19 address the right to work, simplification of employment formalities, and the rights of migrant workers, respectively.
    • Example: Polish electricians working in Germany could rely on this Charter to assert their right to decent working conditions and to bypass overly complex employment procedures.

3. European Convention on the Legal Status of Migrant Workers (1977)

    • Relevance: Focuses on the conditions applicable to the entry and residence of migrant workers and their families.
    • Example: Romanian nurses working in Spain would be informed of the terms of their stay, their working conditions, and their social rights under this Convention.

Tune in next week for our upcoming blog, which will specifically focus on the European Union's approach to the legal rights of skilled migrants.

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