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

Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Albania (Ratification: 2006)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2013.

Repetition

Article 1 of the Convention. Basic human rights. The Committee notes from the report of the UN Special Rapporteur on the Human Rights of Migrants on his visit from 5 to 13 December 2011 to Albania (A/HRC/20/24/Add.1, 12 April 2012), that irregular migration from Albania and cross-border trafficking have decreased in recent years. The report recommends that the Government undertake the following: (a) an analysis on the interrelation between migration and all forms of exploitation, including trafficking, and the human rights of women in the context of migration; and (b) a study on the situation and enjoyment of rights of migrant workers and members of their families in an irregular situation (paragraphs 70(c) and 74(f)). The Committee asks the Government to provide information on steps taken to examine the enjoyment in law and practice of basic human rights of both Albanian emigrants and immigrant workers, including those in an irregular situation, with particular attention to human rights of migrant women. Please continue to provide statistics disaggregated by sex and nationality on migration flows from and to Albania, including irregular migration flows.

Articles 2 and 3. Measures to detect and suppress migration in abusive conditions and illegal employment. The Committee notes the Government’s efforts to establish a comprehensive framework on migration, including irregular migration, in particular the new Law on Foreigners No. 108/2013, the National Action Plan on the Fight against Trafficking in Human Beings (2011–13), and the forthcoming Strategy on the Fight against Organized Crime, Trafficking and Terrorism for 2013 20. It notes that with a view to eliminating irregular migration and illegal employment of foreigners, the Ministry of Labour, Social Affairs and Equal Opportunities has continued a preventative approach by expanding opportunities for migration through legal channels and public employment structures, migration desks and bilateral agreements with a number of countries. A new National Migration Strategy and Action Plan (2013–18) is being developed and will address the emigration of Albanian citizens for employment and the situation of foreign workers in Albania. The Committee asks the Government to provide information on the measures taken under the abovementioned strategies and policies to prevent and suppress irregular migration and illegal employment of migrants in abusive conditions, and on the impact of such measures, and how employers’ and workers’ organizations are consulted in this context. Please also provide additional information on steps taken to establish with other States systematic contact and exchange of information on measures to suppress clandestine movements of migrant workers and their illegal employment, and against the organizers of such activities.

Articles 5 and 6. Sanctions. The Committee notes from the Government’s report that from January to June 2012, inspectors found a total of 956 foreign workers, 158 of whom did not have a work permit, and that according to the Government sanctions for violations were imposed pursuant to Law No. 9634 of 2006 “On the labour inspection and the State Labour Inspectorate”, and that all Regional Directorates apply Order No. 873 of 6 July 2011 “On the inspection of work permits of foreign nationals working in the Republic of Albania”, issued by the Directorate-General of the State Labour Inspectorate. The Committee further notes the administrative sanctions imposed under Chapter XI of Law No. 108/2013, on carriers, state bodies, public, legal or natural persons not complying with the obligations arising from the provisions of the Law, and on employers and employees unlawfully employed. The Penal Code was also amended by Law No. 144/2013 to recognize internal trafficking in human beings, and to provide that the benefits or use of the services provided by trafficked persons or exploitation from trafficking are punishable by law. Please continue to provide information on the facts found as a result of labour inspection activities, specifying the number and nationality of migrants illegally employed or subjected to abusive conditions, and employers unlawfully employing such migrants and convictions pronounced against them. Please provide information on the number of cases registered and prosecuted by the Office of Serious Crimes, the number of convictions against those organizing clandestine movements of migrants, including authors of labour trafficking.

Article 8(1) and (2). Legal status in the case of loss of employment. The Committee notes that section 40(5)(a) and (b) of Law No. 108/2013 concerning the right of the foreigner to remain in the country in the case of unemployment are similar than those in the previous Law on Foreigners. It also notes the Government’s statement that seasonal workers are also protected under these provisions and that constitutional provisions do not differentiate between citizens and foreigners in the case of employment and social protection. The Committee requests the Government to specify 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.

Article 9(1) and (2). Equality of treatment of migrants in an irregular situation. The Committee notes that in the case of unlawful employment of a foreigner, section 137(1)(dh) and (e) and (2) of Law No. 108/2013 requires the employer to pay the arrears for the work performed and of the taxes and social contributions of the foreigner, and that an unlawful employment of at least a six month duration shall be presumed, unless the employer proves otherwise. Section 137(4) imposes measures against the employer in the case of employment of a foreigner unlawfully staying in the territory. The Committee requests the Government to provide information on the measures taken to ensure that migrant workers in an irregular situation can claim their rights in practice regarding remuneration, social security and other benefits, under section 137(1), (3) and (4), and have access to the courts. Please also indicate whether migrant workers in an irregular situation contesting the expulsion are permitted to remain in the country for the duration of the case.

Article 9(3). Costs of expulsion. The Committee notes that Law No. 108/2013 provides that the employer unlawfully employing a foreigner shall cover the costs of return where the return procedure is applied (section 137(d)). However, the Law also continues to provide that return costs and costs of accommodation in the closed centre and costs incurred during forced removal or expulsion shall be paid by the foreigner (sections 118 and 128(1)); only when the foreigner who is to be expelled has no funds to cover the costs, are these to be paid by the person who has enabled entry or stay or illegal transit, or who has assumed the costs of stay and return of the foreigner, or the carrier, or the employer who has unlawfully employed a foreigner (section 128(4)). The Committee once again draws the Government’s attention to paragraph 310 of its 1999 General Survey on Migrant Workers and invites the Government to take adequate steps to bring the legislation into line with the Convention, and to report on the progress made.

Article 16(1)–(3). The Committee requests the Government to continue to provide full information regarding the position of its law and practice in regard to Part II of the Convention and the reasons for which it has not yet included it in its acceptance of the Convention.