Solicitud directa (CEACR) - Adopción: 2018, Publicación: 108ª reunión CIT (2019)

Convenio sobre los trabajadores migrantes (disposiciones complementarias), 1975 (núm. 143) - San Marino (Ratificación : 1985)

New legislation. The Committee notes the Government’s indication that Law No. 95 of 1997 on the stay and residence of foreign nationals was repealed and replaced by Law No. 118 of 2010, as amended by Law No. 118 of 2015. The Law lays down the conditions for the entry of foreign nationals in the country and for the issuance of stay and residence permits. The Committee notes, in particular, that one of the changes introduced by the new Law concerns the extension of the temporary and seasonal work permits for foreigners from 11 to 12 months, renewable up to three times.

Migration flows. In its previous comments, the Committee noted the information provided by the Government concerning the flows of temporary migrant workers entering the country mainly to work in the home-care sector and the hotel and tourism sectors, and asked the Government to continue to provide information in this regard. The Committee notes from the statistical information provided by the Government with its report that, as of 31 December 2015, there were 5,195 foreigners resident in the country, out of a total population of 33,005 individuals. Whereas 4,460 of the foreigners were Italians, the rest came, for the largest part, from Central and Eastern Europe, and more particularly, from Romania, Albania, Ukraine and Russian Federation. The Committee also notes that foreign nationals holding a residence permit include seasonal workers employed in the hotel, agriculture and industry sectors. The Committee requests the Government to continue to supply information, including statistical data disaggregated by sex and origin, on the situation of foreign nationals entering the labour market, and the sectors and occupations in which they are employed.

Article 8 of the Convention. Legal status in the case of loss of employment. In its previous comments, the Committee asked the Government to: (i) indicate the legal status of those seasonal migrant workers who lose their employment and who do not find new employment for the remainder of their work permit and/or permit of stay; and (ii) provide information on how the principle that the residence and/or work permits of workers whose situation is legal are not withdrawn systematically in the case of loss of employment, is applied to non-seasonal migrant workers. The Committee notes the Government’s indication that, under article 18 of Law No. 118 of 2010, the loss of employment does not entail the immediate withdrawal of a migrant workers’ residence permit, except in the event of resignation. In the case of loss of employment, migrant workers are given the possibility to register in a special placement list at the “Ufficio del Lavoro” (employment office), within ten days of losing their job, in order to look for a new job in the same sector. The Committee notes the Government’s indication that the residence permit is withdrawn only if the worker does not find a new job within the duration of the remainder of his or her permit, or when the migrant worker fails to register in the placement list. Concerning temporary and seasonal workers, the Committee notes that pursuant to article 18, paragraph 2, of Law No. 118 of 2010, in the case of loss of employment these workers are given three months to find a new job, after which their resident permit is withdrawn. The Committee further notes that under article 20, paragraph 5, of Decree No. 5 of 2016 setting out the implementing regulations of Law No. 118 of 2010, the registration in the special placement list is subject to the provision by the migrant worker of documentary evidence that she or he has adequate housing. In this regard, the Committee wishes to stress that Article 8(2) of the Convention provides that migrant workers who have lost their employment shall enjoy equality of treatment with nationals in respect of guarantees of security of employment, the provision of alternative employment, relief work and retraining. The Committee recalls that Article 8(2) is conceived, not as an end in itself but as a means of achieving the objective of paragraph 1 of this Article which is to facilitate the restoration of the previous position of the migrant worker, who has lost his or her employment. In addition, Paragraph 31 of the Migrant Workers Recommendation, 1975 (No. 151), provides that migrants who lose their employment should be allowed “sufficient time to find alternative employment at least for the time corresponding to that during which he may be entitled to employment benefit; the authorization of residence should be extended accordingly”. The Committee therefore asks the Government to provide information on the application, in practice, of article 18 of Law No. 118 of 2010, including information on any complaints concerning its application that have been lodged with the competent authorities and their results. Please also clarify the status of the migrant worker who has lost his or her employment and cannot fulfil the requirements for registration in the placement list because his or her housing was provided by the former employer. The Committee also requests the Government to indicate the 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.

Articles 10 and 12. Implementing a national policy on equality. In its previous comments, the Committee noted the Government’s statement that there is no difference in treatment between national and migrant workers with respect to trade union and cultural rights, and the exercise of individual and collective freedoms. It also noted the information in the Government’s report concerning the social security and health coverage of migrant workers. The Committee recalled that not only does Article 10 of the Convention require the repeal of statutory provisions or administrative practices which are discriminatory, but also the adoption of proactive steps by the public authorities to promote equality of opportunity and treatment in practice between nationals and migrant workers lawfully in the country, including with respect to employment and occupation. It also recalled that the objective of the national policy, achieving equality of opportunity and treatment, may be implemented in stages under a coordinated programme of proactive measures, described in Article 12 of the Convention. The Committee notes that the Government reiterates its statement that there is no difference in treatment between national and migrant workers with respect to trade union and cultural rights, and the exercise of individual and collective freedoms. The Committee notes that article 10, paragraph 5, of Law No. 118 of 2010 recognizes that regularly admitted migrant workers enjoy equal treatment and equality of rights and obligations with nationals in respect of services and benefits provided by the Institute of Social Security. On the other hand, the Committee notes from the fifth report of the European Commission against Racism and Intolerance (ECRI) that female migrant workers from Central and Eastern Europe who are employed as private caregivers remain in a vulnerable position and that steps should be taken to ensure that these workers receive information on their rights and on how to obtain assistance in case of problems, as well as on the remedies provided by the law in case of discrimination (CRI(2018)1, 27 February 2018, paragraph 69 et seq.). Once again, the Committee asks the Government to provide information on the application in practice of its national policy aimed at promoting equality of opportunity and treatment between nationals and migrant workers lawfully in the country, and in particular with regard to employment and occupation, including information on any measures taken or envisaged in respect of migrant worker caregivers.