Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Tajikistan (Ratification: 2007)

The Committee previously noted the Government’s indication that a new Law on Labour Migration was being drafted and that a number of orders and decisions were giving effect to the Convention. The Committee notes that the Government indicates in its report that the draft Law on Labour Migration was to be adopted at the end of 2015. The Government also indicates that the legislative provisions previously communicated as relevant to the application of the Convention have become obsolete, and that copies of the relevant new legislative texts that are currently in force are attached to the report. The Government also states more generally that measures were taken to improve laws and regulations relating to migratory processes. Noting that the texts of the new legislative provisions have not been received, the Committee urges the Government to communicate copies of all relevant legislative texts currently in force, indicating specifically the provisions applying the Convention. It also requests the Government to provide more detailed information on the measures taken to improve laws and regulations relating to the migratory processes, including the status of the draft Law on Labour Migration, and to provide a copy of relevant texts, once adopted.

Article 1 of the Convention. Basic human rights of all migrant workers. Referring to its previous comments and in the absence of any information on this point, the Committee reiterates its request to the Government to clarify whether temporary migrant workers residing in the country have the right to join trade unions and in which situations foreign citizens permanently residing in the country do not enjoy this right. The Committee also once again asks the Government to provide information on the practical application of section 3 of the Law on the legal status of foreign citizens 1996, imposing reciprocal restrictions on rights and freedoms of citizens from States where rights and freedoms of Tajik citizens are being deliberately restricted, and to indicate how the basic human right to join trade unions is being guaranteed to migrant workers in an irregular situation.

Tajik migrant workers. The Committee notes the data provided by the Government in its report that Tajikistan continues to be mainly a country of emigration, with mostly young Tajik men going abroad to be employed in temporary and seasonal work, primarily in the Russian Federation. The Committee recalls that the National Strategy on International Labour Migration of Tajikistan Citizens for 2011–15 aimed, among others, to develop effective forms and methods of migration based on broadening economic freedom, respect for human rights and developing bilateral and multilateral international relations, and to establish mutually acceptable relations on these issues with employers of host countries. The Government indicates that many migrant workers from Tajikistan find themselves in an irregular situation as a result of late registration or deliberate actions of employers, or due to lack of knowledge of the legislation in the host country. The Committee asks the Government to indicate the measures taken, including under the National Strategy for 2011–15, to ensure respect of the basic human rights of all migrant workers, including Tajik nationals who have migrated through irregular channels.

Article 2. Identifying illegal employment and migration in abusive conditions. The Committee notes Government’s indication that the Migration Service together with the General Prosecutor’s Office, the Ministry of Internal Affairs, the State Committee on National Safety and the border services authorities operate to prevent irregular migration, including under the “Illegal Alien Programme”. The first phase of the Programme aimed to prevent irregular migration of foreign citizens and stateless persons by preventing, identifying and closing off channels of activity groups, organizations and enterprises operating illegally in Tajikistan. The Committee asks the Government to continue to provide information on the measures taken or envisaged to determine systematically whether there are any illegally employed migrants in the territory and whether migrants for employment depart from, pass through or arrive in the country in abusive conditions as defined in Article 2(1) of the Convention. The Committee encourages the Government to make special efforts to collect on a regular basis statistical data on irregular migration flows and illegally employed migrants, and to provide information on any progress made in this regard.

Article 4. Measures to establish systematic contact and exchange of information with other States. The Committee notes from the Government’s report that in view of the fact that over 90 per cent of the citizens of Tajikistan work in the Russian Federation, the Government is paying significant attention to cooperation between both countries in the area of labour migration. The Government refers to the agreement reached in the beginning of 2017 between the two heads of State on the provision of assistance to Tajik citizens that have committed administrative offences in the Russian Federation and who are temporarily denied entry by means of an exclusion list. Another agreement aims to regularize the situation of Tajik citizens whose residency permit has expired. The Committee asks the Government to provide information on the measures taken at the national and international levels to establish contact and exchange information on illicit or clandestine movements of migrants for employment and measures taken to prevent and eliminate abuses and the results achieved.

Article 5. Authors of trafficking for labour purposes. The Committee notes the Government’s very general statement that measures provide for the possibility of prosecuting those persons responsible for irregular migration, regardless of the country in which they operate. The Committee asks the Government to indicate more specifically, including the relevant legal provisions, the arrangements on the national or international level by which authors of labour trafficking can be prosecuted whatever the country from which they exercise their activities.

Article 6. Legislative provisions for the effective detection of the illegal employment of migrant workers and effective administrative, civil and penal sanctions in respect of illegal employment and organizing clandestine movements of migrants. The Committee recalls the Criminal Code provisions contained in sections 130 (Trafficking in Human Beings) and 132 (Recruitment of Persons for Exploitation). The Committee also notes that the Act No. 47 of 15 July 2004 to Combat Human Trafficking (amended in 2007) contains a broad definition covering trafficking in persons both for the purpose of labour and sexual exploitation, and refers in this regard to its 2016 comments on the Forced labour Convention, 1930 (No. 29). The Committee notes from the Government’s report that in the context of the “Illegal Migration Programme”, 15,074 foreign citizens and stateless persons were checked in 2016 and 10,924 were checked at their residence. In addition, inspections covered 1,675 construction sites, 248 industrial enterprises, 259 retail outlets and 968 organizations where foreign citizens worked; of the 227 foreign citizens and host parties that violated residency conditions, 96 were deported following judicial decisions. The Government further indicates that significant attention is paid to preventive work targeting foreign workers, and in April and June 2016 two educational seminars were held with economic bodies engaged in recruiting foreign workers; information was distributed on relevant national legislation. The Committee asks the Government to continue to provide information on the activities to detect the illegal employment of migrant workers or the organization of clandestine movements, and to indicate whether any administrative, civil or penal sanctions have been imposed against those organizing clandestine movements of migrants generally, or those illegally employing migrants. The Committee reiterates its request to the Government to provide information on any legal proceedings which have been instituted under the relevant sections of the Criminal Code, indicating the penalties imposed on perpetrators.

Article 7. Consultations with employers’ and workers’ organizations. The Committee requests the Government to continue to provide information on how the consultation of workers’ and employers’ organizations and their possibility to take initiative is being ensured with regard to laws and regulations and other measures provided for in the Convention, particularly those designed to prevent and eliminate migration in abusive conditions.

Article 8(1) and (2). Legal status in the event of loss of employment. Right to alternative employment, retraining and relief work. The Committee reiterates its request to the Government to provide information on the specific legislative provisions and other measures taken to ensure that migrant workers who have lost their employment enjoy equal treatment with nationals in respect of guarantees of security of employment, the provision of alternative employment, relief work and training, in accordance with Article 8(2) of the Convention.

Article 9. Equality of treatment in respect of the rights arising out of past employment. The Committee notes from the Government’s report that following inspections targeting irregular migration, of the 227 foreign citizens and host parties that violated residency conditions, 96 were deported following judicial decisions. The Committee recalls that under Article 9(1) and (2) of the Convention, migrant workers whose situation cannot be regularized should enjoy equality of treatment with respect of rights arising out of past employment with respect to remuneration, social security and other benefits. In the absence of any information in the Government’s report on this point, the Committee once again requests the Government to provide information, including reference to the relevant legislation, on the measures taken to ensure that irregular migrant workers enjoy equality of treatment with regularly admitted and lawfully employed migrants in the country in respect of the rights arising out of past employment, as regards remuneration, social security and other benefits. The Committee further reiterates its request to the Government to provide information on any cases concerning breaches of equality of treatment brought before courts of law and the final decisions handed down, and to indicate whether migrant workers, contesting their expulsion are permitted to remain in the country for the duration of the case.

Articles 10 and 12. National policy on equality of opportunity and treatment. The Committee previously noted that section 7 of the Labour Code prohibited distinctions on the basis of a range of grounds, including nationality, place of birth and national origin, with respect to the recruitment stage. The Committee recalls the obligation pursuant to Articles 10 and 12 of the Convention to declare and pursue a national policy designed to promote and ensure equality of opportunity and treatment not only with respect to recruitment but in all aspects of employment and occupation, as well as with respect to social security, trade union and cultural rights and individual and collective freedoms for migrants and members of their families lawfully in the country. The Committee reiterates its request to the Government to provide information on the adoption and implementation of such a national equality policy, including any practical measures, such as educational programmes by which the national policy is being implemented and observed.

Article 14. Free choice of employment. Referring to its previous comments regarding certain restrictions on the employment of foreign citizens pursuant to section 14 of the Law on the legal status of foreign citizens, the Committee once again requests the Government to (i) indicate the restrictions imposed on foreign citizens to enjoy the free choice of employment and the maximum period imposed; (ii) supply information on any measures taken to regulate the recognition of occupational qualifications acquired outside the territory and how workers’ and employers’ organizations are being consulted in this regard; and (iii) indicate the categories of functions or employment to which access is restricted for foreign workers.

Geographical mobility. The Committee refers to its previous comments regarding restrictions on movement within the territory and choice of place of residence. Recalling once again that the right to geographical mobility must be ensured whatever the duration of residence or employment, the Committee asks the Government to clarify the practical meaning of the restrictions imposed on freedom of movement of foreign citizens under section 19 of the Law on the legal status of foreign citizens.

Article 15. Bilateral and multilateral agreements. The Committee previously noted that discussions were ongoing regarding draft agreements with the Russian Federation and neighbouring countries on labour migration and social protection of migrant workers and members of their families, and a draft agreement between the Commonwealth of Independent States (CIS) on the common principles and mechanisms for the organized recruitment of migrant workers in the CIS was in the making. The Committee requests the Government to provide information on any bilateral and multilateral agreements concluded, including copies of the relevant texts or a summary in any of the official languages of the ILO as well as on their practical implementation and their impact.

Practical application and enforcement. The Committee notes that the Migration Office of the Ministry of Labour, Migration and Employment of Tajikistan in the Russian Federation aims to protect the rights and interests of Tajik citizens in cooperation with the Embassy and consular services. The Migration Office together with national public organizations and the Tajikistan diaspora undertake advocacy in the Russian Federation on the questions of legal residency and employment. The Committee asks the Government to continue to provide information on the specific activities of the Migration Office, in cooperation with other partners, to give effect to the provisions of the Convention. The Government is also asked to provide copies of any relevant studies or surveys that have been undertaken on any of the matters referred to in the Convention. Noting further the Government’s indication that an Agency for Employment Abroad has been set up in 2014, the Committee asks the Government to clarify whether this Agency is different from the Migration Service, and if so to indicate the specific activities of the Agency relating to the application of the Convention.