Demande directe (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 - Bosnie-Herzégovine (Ratification: 1993)

Article 1 of the Convention. Basic human rights of all migrant workers. The Committee recalls that article 2 of the Constitution of Bosnia and Herzegovina (BiH), article 2 of the Constitution of the Federation of BiH and article 44 of the Constitution of the Republika Srpska recognize fundamental freedoms and human rights for all persons within their territory. The Committee notes the Government’s indication that the rights and freedoms envisaged in the European Convention on Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina and that the Law on Movement and Stay of Aliens and Asylum, 2009, and the Law on the Prohibition of Discrimination created the conditions for the exercise of equal rights and opportunities for protection against discrimination on any basis for all citizens and all people who live and work in BiH. The Committee asks the Government to clarify whether the constitutional and legal provisions described above apply to both migrant workers in a regular and an irregular situation and to indicate specifically which basic human rights apply to them.

General conditions for granting temporary residence. The Committee notes that section 53(1)(c)of the Law on Movement and Stay of Aliens and Asylum, 2009 provides that temporary residence can be granted on the condition that the foreigner is in possession of a medical certificate showing that he or she does not suffer from a disease that represents a threat to public health. The Committee draws the Government’s attention to paragraphs 263 to 266 of the General Survey on migrant workers, 1999, that refer to the measures deemed reasonable to prevent migration from posing a threat to public health and establish the type of medical controls that can be requested in order to obtain a medical certificate. The Committee therefore requests the Government to indicate the content of the medical examination and the type of diseases that are considered to represent a threat to public health.

Articles 2 to 6. Measures to detect and address irregular migration. The Committee notes the extensive information provided by the Government with respect to the measures adopted regarding the establishment of mechanisms for the implementation and monitoring of migration flows, including the elaboration of the Migration Profile, 2011, as well as the Strategy in the Area of Migration and Asylum and the Action Plan for the Period 2012–15. The strategy contains, among others, mid-term strategic goals that refer to the improvement of the quality of the international and temporary protection (Asylum); contribution to the reduction of trafficking in persons and enhancement of the fight against irregular migration as well as the control and registration of foreigners including control of those foreigners that could be illegally employed in BiH. The Government further indicates that training activities on trafficking in persons have been carried out for judges and prosecutors in cooperation with the International Organization for Migration (IOM). The Committee also notes the ratification of the European Convention on Action against Trafficking in Human Beings which provides that parties shall cooperate with each other, for the purpose of preventing and combating trafficking in human beings; protecting and providing assistance to victims; and carrying out investigations or proceedings concerning criminal offences. The Committee further notes the amendment of the Criminal Code of BiH in 2010 introducing the criminal offence of “organizing groups or associations to carry out criminal acts of trafficking and smuggling of migrants” (section 189a). The law establishes penal sanctions for those responsible, including those who use the services of victims of trafficking. The Committee requests the Government to provide the following:

• -full information on the measures taken under the Strategy in the Area of Migration and Asylum and the Action Plan for the Period 2012–15 to suppress clandestine movements of migrants for employment and the illegal employment of migrants, and on the specific measures taken to combat trafficking in persons, in particular of women, and on their impact on preventing and eliminating this phenomenon;
• -statistical data and other information on the situation of irregular migrant workers in the country collected by the Ministry of Security;
• -information on whether the authors of labour trafficking can be prosecuted whatever the country from which they exercise their activities, and whether any arrangements at the national or international level have been made in this regard;
• -information on any administrative, civil and penal sanctions applicable to persons illegally employing migrant workers, organizing the movements of migrants for employment in abusive conditions or knowingly providing assistance to such movements, whether for profit or otherwise, specifying the relevant legislative provisions. Please also provide information on the application of the sanctions contemplated in the laws regulating the employment of foreigners of the Federation of BiH, the Republika Srpska and the District of Brcko.

Article 7. Recalling that workers’ and employers’ organizations shall be consulted in regard to the issues covered by the Convention, the Committee requests the Government to take the necessary measures to involve the social partners in the initiatives designed to detect, eliminate and prevent migration in abusive conditions and the illegal employment of migrant workers.

Article 8. Legal status in the event of loss of employment. The Committee notes the Government’s indication that according to section 52 of the Law on Movement and Stay of Aliens and Asylum, a temporary residence permit can be issued for a period not exceeding one year. Section 77 of the same law provides that work permits are issued for a specific post and for a specific type of job. According to section 85, within 15 days of termination of the work permit the temporary residence permit expires, if it had been granted on the basis of that work permit. The Government further indicates that if a foreigner loses the job, there are no longer grounds to justify the remaining period of the temporary stay and in this case his or her temporary residence may be cancelled. The Service for Foreigners will consequently proceed to inform the authority responsible for the employment of foreigners who makes the decision on suspension of the work permit. From the abovementioned provisions it appears that foreigners with a temporary residence permit who lose their employment may find their work permit suspended and residence permit cancelled. The Committee recalls that the practice of returning migrants at the end of a time-bound contract does not in itself constitute a violation of the Convention and that Article 8(1) refers to migrant workers who “lose” their employment, as opposed to those whose employment comes to an end as foreseen in the employment contract. In effect, Article 8(1) expressly requires that the loss of employment shall not in itself lead to the revocation of the work or residence permit. The Committee draws the Government’s attention to paragraphs 31 to 34 of the Migrant Workers Recommendation, 1975 (No. 151), according to which migrants who have lost their employment should be allowed sufficient time to find alternative employment and they should be guaranteed the right to legal redress should they lodge an appeal either claiming violation of benefits and compensation or against the issuance of an expulsion order (see General Survey, 1999, paragraph 614). The Committee requests the Government to provide information on the measures taken to ensure that migrant workers who have lost their employment are not regarded as in an irregular situation by the mere fact of the loss of their employment and to indicate how such workers enjoy equal treatment with nationals in the areas of security of employment, the provision of alternative employment, relief work and retraining, in accordance with Article 8(1) and (2) of the Convention. Please indicate whether migrant workers contesting the expulsion are permitted to remain in the country for the duration of the case.

Article 9(1) and (2). Equality of treatment in respect of rights arising out of past employment. The Committee notes that the Government reiterates that the rights of migrant workers arising out of past employment in terms of remuneration, social security and other benefits are recognized solely on condition that specific agreements on social security have been signed between BiH and the countries concerned. The Committee recalls that the principle of reciprocity does not apply in this context and highlights that according to Article 9(1) migrant workers in an irregular situation should enjoy equality of treatment for themselves and their families in respect of rights arising out of past employment as regards remuneration, social security and other benefits. The purpose of this Article is to ensure that illegally employed migrant workers are not deprived of their rights in respect of the work actually performed. Moreover, in the event of a dispute, the worker should have the possibility of presenting his or her case to a competent body and enjoy equal treatment with national workers as regards legal assistance. The Committee requests the Government to take the necessary measures to ensure that migrant workers in an irregular situation enjoy the rights arising out of past employment in terms of remuneration, social security and other benefits and to provide information on any developments in this regard. The Committee further requests the Government to provide information on any cases concerning breaches of equality of treatment brought before courts and the decisions handed down.

Article 9(3). Cost of expulsion. The Committee notes that the Government indicates that in case of expulsion of foreigners, they will be required to pay the expenses. The Committee notes in this respect that section 96 of the Law on Movement and Stay of Aliens and Asylum provides that in the case of repatriation or placement of a foreigner under supervision before his or her removal from the country, a foreigner is obliged to pay his or her expenses and travel cost. The Committee underlines that according to Article 9(3) in case of expulsion of the worker or his or her family, “the cost shall not be borne by them”. The Committee draws the Government’s attention to paragraph 310 of the 1999 General Survey according to which a “clear distinction should be made between: (a) the case where the migrant worker is in an irregular situation for reasons which cannot be attributed to him or her (such as redundancy before the expected end of contract …), in which case the cost of his or her return as well as the return of family members, including transport costs, should not fall upon the migrant; and (b) the case where the migrant worker is in an irregular situation for reasons which can be attributed to him or her, in which case, only the costs of expulsion may not fall upon the migrant”. The Committee also considered that costs of surveillance constitute administrative costs within the context of escorting the migrant worker to the frontier that must be borne by the State which wishes to ensure that the worker and his or her family actually leave the country following a decision to expel (see General Survey, op. cit., paragraph 311). The Committee requests the Government to take the necessary measures to amend section 96 of the Law on Movement and Stay of Aliens and Asylum so as to ensure that at least the costs arising out of placing a foreigner under supervision are not borne by the migrant worker. The Committee requests the Government to provide information on any development in this regard.

Article 10. Promotion of equality of opportunity and treatment. The Committee notes the Government’s general statement that the area of employment is not regulated at the State level. The Committee also notes that the Strategy in the Area of Migration and Asylum and the Action Plan for the Period 2012–15 sets out some mid-term strategic goals that could help in the designing of a policy on equality of opportunity and treatment for migrant workers, such as strengthening institutional capacities with the purpose of connecting migration and development; ensuring overall integration of foreigners; and establishment of a permanent coordination system in the realization of the migration policy. The Committee requests the Government to take the necessary steps to formulate and implement a policy on equality of opportunity and treatment in cooperation with workers’ and employers’ organizations. The Committee requests the Government to provide information on any developments in this regard and on the implementation of the Strategy in the Area of Migration and its contribution to the policy on equality of opportunity and treatment for migrant workers.

Article 12. Legislation. The Committee notes that section 8 of the Law on Movement and Stay of Aliens and Asylum in BiH prohibits discrimination against foreigners on a series of grounds including national origin, sex and race. Section 85 provides that “aliens holding a permanent residence permit in BiH, aliens with approved international protection in BiH and aliens with approved temporary protection are entitled to work in BiH under same conditions as citizens”. Section 5 of the Labour Law Federation of BiH prohibits discrimination against employees and job seekers on a number of different grounds, including colour, race, sex, language, religion, political or other opinion, national or social origin. The Committee further notes the adoption of the Law on the Prohibition of Discrimination, 2009, which provides for protection to all persons in BiH against discrimination on the basis of a series of grounds including national or social origin and belonging to a national minority (sections 1 and 2). Noting that section 5(e) of this Law provides for legal exceptions to the principle of equal treatment on the basis of different situations and in particular when “they are based on citizenship in a way prescribed by the law” the Committee requests the Government to provide information on the practical application of this provision to migrant workers. Please also provide information on any judicial or administrative decisions concerning cases of discrimination brought before the competent bodies by migrant workers, and their outcome.

Article 14. Restrictions on the employment of migrant workers. The Committee notes that section 77 of the Law on Movement and Stay of Aliens and Asylum provides that work permits shall be issued for a specific post and/or a specific type of job and for a period no longer than a year. Section 52(6) provides that the renewal of the temporary residence permit may be approved at the migrant worker’s request, but only on the same grounds on which he or she was initially granted temporary residency. The Council of Ministers determines the activities and professions which allow employment of foreigners and the number of work permits for each of these activities and sets the territorial distribution of work permits in line with the expressed needs of the entities. Recalling that the maximum period allowed by the Convention for applying restrictions on foreigners’ employment is two years, the Committee requests the Government to provide practical information on the application of sections 77 to 79 of the Law on Movement and Stay of Aliens and Asylum. Please also provide information on the bilateral agreements regulating the issue of recognition of occupational qualifications acquired outside the country and on the measures taken to consult with the social partners during the negotiation of such agreements.

Parts III and IV of the report form. The Committee requests the Government to provide information on the activities carried out by the labour inspectorate services as well as any relevant administrative or judicial decisions relating to the application of the Convention.

Part V. The Committee notes the extensive information gathered in the Bosnia and Herzegovina Migration Profile for the year 2011, including statistics, that refer to the evolution of the migration flows, permits and residence granted, data on irregular migration and measures adopted to address it. The Committee further notes that the Government reiterates its previous statement that, in practice, difficulties exist in implementing the Convention owing to the sharing of competencies and responsibilities relating to the regulation of migration between the various horizontal and vertical levels of government. The Committee requests the Government to indicate whether consideration is being given to the adoption of measures for coordination of the regulation of migration in order to ensure that it is uniformly and coherently applied throughout the country.the country.

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