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MEXICO: Undocumented Migrants Have Labour Rights, Courts Rule

Emilio Godoy

MEXICO CITY, Aug 17 2007 (IPS) - Two recent court rulings in Mexico hold out a glimmer of hope for greater respect for the rights of undocumented immigrants in this country.

Labour courts in Mexico City and Aguascalientes, 513 km northwest of the capital, ruled that two undocumented South American immigrants have the right to severance pay after being laid off by their employers.

In their two verdicts, the three-member appeals courts argued that the Mexican law that regulates migration issues does not apply to such cases and that the plaintiffs are protected by the Mexican constitution, which makes no distinctions depending on nationality.

The decisions may be appealed to the Supreme Court, which has never ruled on the labour rights of undocumented immigrants.

The court in the Mexican capital decided that even if an individual is in the country illegally, that does not mean they can be deprived of their labour rights.

The court in Aguascalientes, for its part, cited the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by the United Nations in 1990 and ratified by Mexico in 1999. The Convention went into force in 2003.

In November 2006, the U.N. Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, which monitors implementation of the international convention, expressed concern over the case of Mexico, because of the numerous complaints about maltreatment and cruel and degrading practices suffered by migrant workers in this country.

Mexico’s Supreme Court has ruled that the constitution takes precedence over international treaties signed by Mexico.

Karina Arias, a spokeswoman for Sin Fronteras (No Borders), a non-governmental Mexican organisation that works on behalf of migrants and carries out research on migration issues, told IPS that the labour court resolutions "set a legal precedent."

Arias said "the verdicts are correct. The constitution does not discriminate on the basis of nationality and what must be privileged is the right of persons above and beyond their migration status."

In Aguascalientes, a local labour board had denied the plaintiff the right to severance pay, while in Mexico City, the plaintiff’s employer won a lawsuit that had dragged on for five years.

But on appeal, the courts found that both migrant workers had the right to severance pay.

The important thing about the two legal decisions "is that they are precisely addressing the question of the contrast between what we demand for Mexican immigrants in the United States and how we treat immigrants here," said Arias, whose organisation has been active for 11 years.

Although Mexico deports around 200,000 migrants from other Latin American nations annually, there are no reliable statistics on the number of undocumented immigrants working in this country of 108 million.

Mexico is also a gateway to the United States for tens of thousands of migrants, mainly from Central America, but also from South America and even Asia.

The U.S. Supreme Court ruled in March 2002 that undocumented workers who have been unlawfully fired because they participated in union activities are not entitled to monetary compensation for wages they would have earned if they had not been laid off.

In response, the Mexican government sought a non-binding advisory opinion from the Inter-American Commission on Human Rights (IACHR).

In September 2003, the IACHR declared that individual rights guarantees (including labour rights) applied to migrants regardless of immigration status, under the principle of equality and non-discrimination.