Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 253
a) Discrimination in social security and equal application to
migrants
The duty to give immediate effect to obligations of non-discrimination
also applies in relation to social security. 1041 The CESCR has recommended
that States should give special attention to the social security
needs of refugees, asylum-seekers, and non-nationals 1042 and has unequivocally
stated that “Article 2, paragraph 2, prohibits discrimination
on grounds of nationality”. 1043 More precisely,
“[w]here non-nationals, including migrant workers, have contributed
to a social security scheme, they should be able to benefit
from that contribution or retrieve their contributions if they
leave the country. A migrant worker’s entitlement should also
not be affected by a change in workplace. Non-nationals should
be able to access non-contributory schemes for income support,
affordable access to health care and family support. Any restrictions,
including a qualification period, must be proportionate and
reasonable. [. . .] Refugees, stateless persons and asylum-seekers,
and other disadvantaged and marginalized individuals and
groups, should enjoy equal treatment in access to non-contributory
social security schemes, including reasonable access to
health care and family support, consistent with international
standards.” 1044
The CERD has determined that making distinctions between the treatment
of nationals and non-nationals does not necessarily amount to
impermissible discrimination under CERD. The CERD found it sufficient
that access to social benefits did not discriminate among foreigners of
different nationalities and treated all non-nationals on an equal footing,
1041 Ibid., paras. 29–30, 40. See also, Concluding Observations on Azerbaijan, CESCR, UN Doc.
E/C.12/1/Add.104, 14 December 2004, para. 48; Concluding Observations on China, CESCR,
UN Doc. E/C.12/1/Add.107, 13 May 2005, paras. 96, 114 and 124; Concluding Observations
on Austria, CESCR, UN Doc. E/C.12/AUT/CO/3, 25 January 2006, paras. 15 and 29
(on equal amount of social benefits); Concluding Observations on Costa Rica, CESCR,
UN Doc. E/C.12/CRI/CO/4, 4 December 2007, para. 21; Concluding Observations on Cyprus,
CESCR, op. cit., fn. 784, para. 18; Concluding Observations on Australia, CESCR, UN Doc.
E/C.12/AUS/CO/4, 12 June 2009, para. 20. See also, Concluding Observations on Canada,
CERD, UN Doc. CERD/C/CAN/CO/18, 25 May 2007, para. 23 (including undocumented migrants
and non-removable failed asylum-seekers); Concluding Observations on Switzerland,
CERD, UN Doc. CERD/C/CHE/CO/6, 23 September 2008, para. 17. See, Concluding Observations
on Costa Rica, CEDAW, Report of the Committee on the Elimination of Discrimination
against Women to the General Assembly, 58 th Session, UN Doc. A/58/38 (2003), p. 86,
para. 63 (for women migrant workers and migrant domestic workers in formal and informal
sector); Concluding Observations on Lithuania, CRC, UN Doc. CRC/C/LTU/CO/2, 17 March 2006,
paras. 62–63 (access to social welfare for children regardless of their migration status).
1042 See, ibid., para. 31.
1043 Ibid., para. 36.
1044 Ibid., paras. 36–38. See also, Article 9, Migrant Workers (Supplementary Provisions) Convention
(C143), ILO.