The European Social Charter (1961) (revised 1996), (ESC) protects a number of rights of workers; in relation to migrant workers Article 18 protects the right of nationals of Council of Europe Member States to engage in gainful occupation in the territory of other Contracting Parties. States are required to apply regulations in a spirit of liberality; simplify formalities; and liberalise individually or collectively the regulations governing the employment of foreign workers. They must also recognise the rights of their own nationals to leave their country to engage in employment in other Council of Europe states. Article 19 provides specific protection to migrant workers and their families, and includes obligations on Contracting Parties to undertake to: maintain services to provide accurate information to workers; adopt measures to facilitate the departure, journey and reception of workers and their families; to promote co-operation between social services, in emigration and immigration countries; and to secure equal treatment with nationals in relation to remuneration and employment and working conditions, membership of trade unions and benefits of collective bargaining, and accommodation; and to facilitate as far as possible the family reunion of a foreign worker.

The Council of Europe States opened for signature the European Convention on the Legal Status of Migrant Workers in 1977 which sets out in great detail the rights and entitlements of migrant workers. This Convention is part of the legal framework within the Council of Europe of human rights protection and also a part of the framework, which deals with non-nationals rights on the territory of Council of Europe Member States. It covers similar ground to the European Social Charter although it is more specific in scope. The Convention came into force in May 1983, after receiving its fifth ratification.

The Convention defines migrant workers, in Article 1, paragraph 1, as nationals of Contracting Parties authorised to reside on the territory of another Council of Europe member states to take up paid employment. This provision therefore excludes migrant workers from outside Council of Europe member states as well as workers who have not been authorised to reside in the other Council of Europe states for the purposes of employment, for example those who have moved for the purposes of education but have taken up part-time employment and irregular migrant workers. Paragraph 2 of Article 1 excludes a number of types of workers from the scope of the Convention; these include seaman, seasonal workers and persons undergoing training. The Convention is therefore aimed at workers who intend to settle in different Council of Europe States on a long-term basis.

Chapter 3 of the Convention covers economic and social rights, which must be accorded to migrant workers who come within the scope of the Convention. The following provisions are included: Article 8 provides that migrant workers must be provided with work permits which may not tie them to the same employer or area for a period longer than a year. Under Article 9 migrant workers, within the scope of the Convention are entitled to residence permits for the period of employment; their family members are also entitled to residence permits. The same provision states that if the migrant worker is unable to work because of illness, accidents or another reason for involuntary unemployment they should be allowed to reside on the territory of the state for at least five months. It also provides for the withdrawal of work permits for reasons of national security, public policy or morals. Article 10 sets out reception conditions for migrant workers, which include that all necessary information should be provided to the worker and their family for their settlement and adaption. Migrant workers are also entitled to the same level of assistance from employment services as nationals of member states under Article 10, and the freedom to worship in accordance with their faith.

Article 12 of the Convention sets out migrant workers rights to family reunion. The spouse and unmarried children, providing they are considered minors in the receiving state, are entitled to admission analogous to the migrant worker. However under Article 12, paragraph 2 contracting states may make this entitlement subject to a waiting period of not more than one year. States may also, by declaration, restrict family reunion rights to those who have sufficient resources to meet the needs of their families in the Council of Europe country of migration. Article 13 states that access to housing must be not less favourable than that which is accorded to nationals. Contracting parties are required to protect migrant workers from exploitation in respect of rents paid for housing. Article 16 ensures equal treatment of migrant workers with nationals of member states in relation to conditions of work.

A Consultative Committee was established in 1984 under Article 33 of the Convention to request information on the implementation of the Convention from state parties, analyse compliance and provide guidance on the interpretation of the Convention. The Committee is made up of one representative from each state party to the Convention and it meets once every two years. The Committee takes an investigative approach and seeks further information on implementation of the Convention when the state party has not provided it.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.