Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Migration for Employment Convention (Revised), 1949 (No. 97) - Kyrgyzstan (Ratification: 2008)

Statistical information on migration flows. The Committee welcomes the detailed statistical information provided by the Government showing that in 2019 more than 776,000 persons migrated for employment mainly to the Russian Federation, Turkey and Kazakhstan. It further notes that the quota of foreign workers established by the Government for 2019 was 17,410 workers, which included 562 individual entrepreneurs, mainly in the sectors of industry, agriculture and energy, prospecting and extraction. The Committee requests the Government to continue to provide information concerning the number of incoming and outgoing migrant workers, the sectors of occupation concerned

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the Government’s indication that, further to the amendment on 24 March 2018 on the Act on Foreign Labour Migration, standards have been established restricting the number of foreign workers at one economic entity to not more than 20 per cent of the overall number of workers. The Government also indicates that it plans to develop a concept for migration policy. The Committee requests the Government to continue to provide information on the implementation of national policies, laws and regulations on labour migration, including the formulation of a concept for migration policy, and any obstacles encountered.

Articles 2 and 3. Information and misleading propaganda. The Committee welcomes the information provided by the Government regarding the establishment and activities of the Information and Advice Centre operating as part of the State Migration Service. The Centre helps unemployed citizens find work abroad, mainly in the Russian Federation, Kazakhstan, the Republic of Korea and Turkey; it also undertakes activities to raise public awareness on access to the state services available and holds consultations. The Government adds that hotlines are also available as mechanisms against misleading propaganda and that Instructions for Private Employment Agencies for Pre-departure Preparation of Migrant Workers have been developed and approved, and the licence of a private agency may be suspended if a violation of dissemination of misleading propaganda is detected. The Committee asks the Government to provide information on the supervision of the private agencies under the Instructions for Private Employment Agencies for Pre-departure Preparation of Migrant Workers and its results, and information on any steps taken against misleading propaganda relating to emigration and immigration.

Article 4. Facilitation of departure, journey and reception of migrant workers. The Committee notes the Government’s indication that the Information and Advice Centre establishes favourable conditions for the work of private agencies to recruit abroad. It notes that, over the reporting period, with the cooperation of 123 private agencies, it was possible to find work abroad for 5,507 Kyrgyz citizens – 2,056 of which were women. A number of agreements are also being developed under the Eurasian Economic Union that are aimed at facilitating the stay, recruitment and safety of workers. The Committee asks the Government to continue to provide information regarding services provided to Kyrgyz citizens emigrating for labour purposes, through the Information and Advice Centre or otherwise. It also requests the Government to provide information on any information and assistance services provided to foreign workers in Kyrgyzstan and to returning migrant workers to assist in their reintegration in the country.

Article 5. Medical services. The Committee notes the Government’s indication that, under Act No. 4 of 13 January 2006 on External Labour Migration, foreign citizens must, at the request of the employer, submit to a medical examination in the format established by law. The Government also indicates that, “if, during the medical examination, any social disease is identified (HIV/AIDS), the medical centre does not issue the foreign worker with a medical certificate. Accordingly, a foreign citizen who does not have the full packet of documents cannot submit those documents for the committee’s consideration in order to receive a work permit”. The Committee recalls that it considers that “refusal of entry ... on the grounds that the worker concerned is suffering from an infection or illness of any kind, which has no effect on the task for which the worker has been recruited, constitutes an unacceptable form of discrimination” (General Survey of 1999 on migrant workers, para. 266). The Committee also draws the Government’s attention to Paragraphs 25 and 28 of the HIV and AIDS Recommendation, 2010 (No. 200), which provide that “HIV testing or other forms of screening for HIV should not be required of workers, including migrant workers, jobseekers and job applicants” and “[m]igrant workers, or those seeking to migrate for employment, should not be excluded from migration by the countries of origin, of transit or of destination on the basis of their real or perceived HIV status” (General Survey of 2016, paragraph 252). The Committee requests the Government to take the necessary measures to amend the Act No. 4 of 2006 with a view to ensuring that when the worker concerned is suffering from an infection or illness of any kind, which has no effect on the task for which he or she has been recruited, he or she can obtain a work permit and to provide information on any progress achieved in this respect.

Article 6. Equality of treatment. The Committee notes that, in reply to its request regarding the implementation in practice of the non-discrimination provisions of Law No. 61 of 2000, the Government indicates that an inter-agency working committee was established to consider the status of immigrants in order to issue or withdraw residency permits. The Committee recalls that Article 6 of the Convention prohibits unequal treatment resulting from legislation or administrative practices. Member States should ensure that equality legislation is applied effectively, including through labour inspection or other supervisory authorities. In requiring “no less favourable treatment”, the Convention allows the application of treatment to migrant workers which, although not identical to that enjoyed by nationals, is equivalent in its effects”. The Committee also considers that “Governments should implement active measures appropriate to the national circumstances so as to ensure that this right is effective in practice as well as in law” (General Survey of 2016, paras 332 and 420). The Committee requests the Government to indicate how it ensures that the treatment extended to migrant workers employed in Kyrgyzstan is no less favourable than that which is applied to nationals, in law and in practice with regard to the matters listed in Article 6(a)-(d) of the Convention, in particular conditions of work and social security. The Committee also asks the Government to provide information on any activities carried out by the labour inspection services, or other enforcement bodies, to monitor conditions of employment of migrant workers, and secure the enforcement of legal provisions relating to their conditions of work, particularly in the sectors in which they are mainly employed, and their outcome. Please also indicate the mechanisms and procedures allowing migrant workers to be informed of their rights and to seek redress on an equal footing with nationals regarding situations of non-respect of the right to equal treatment in practice, with respect to working conditions, including termination, without facing the risk of losing their residence permit.

Article 8. Maintenance of residence in the event of incapacity for work. In its previous comment, the Committee requested the Government to indicate if the refusal to issue a residence permit on the grounds that “the migrant worker is not able to sustain himself or his dependants”, under Law No. 61 of 2002, also applies to migrant workers who have been admitted on a permanent basis or to the members of his or her family, because the migrant is unable to follow his or her occupation by reason of illness contracted or injury sustained subsequent to entry. Noting that the Government’s report does not contain any reply, the Committee recalls that security of residence of permanent migrants and members of their families in case of ill health or injury constitutes one of the most important provisions of the Convention, and it is concerned that, in cases where this is not effectively applied, permanently resident migrants may find themselves under constant threat of repatriation. The Committee therefore requests the Government to indicate how it is being ensured that migrant workers who have been admitted on a permanent basis, and the members of their family authorized to join them, and who are unable to work due to illness contracted or injury sustained subsequent to entry, maintain their right to residence or are not refused the issuance of the residence permit on the grounds of their inability to sustain themselves or their dependants.

Article 11. Definition of the term “migrant workers”. The Committee notes the Government’s indication that the situation of refugees who are not covered by Act No. 4 of 2006 on External Labour Migration is governed by the Refugees Act of 2002.

Annex I of the Convention. In reply to the Committee’s request, the Government indicate that private employment agencies providing services for the recruitment of Kyrgyz citizens abroad operate with a permit granted by the Government’s State Migration Service and are regulated by Government Decision No. 175 of 16 April 2019 approving the Regulations on the Performance of Labour Activities by Foreign Citizens and Stateless Persons in the Territory of Kyrgyzstan, and the Regulations on the Procedure for Undertaking the Recruitment of Kyrgyz Citizens Abroad. Noting this information, the Committee asks once again the Government to provide information on: (i) the type of services they provide to migrant workers and to specify whether these services are free of charge; and (ii) the number or percentage of migrant workers who have migrated to or from Kyrgyzstan with the assistance of an employment agency or not.