Solicitud directa (CEACR) - Adopción: 2013, Publicación: 103ª reunión CIT (2014)

Convenio sobre los trabajadores migrantes (disposiciones complementarias), 1975 (núm. 143) - Armenia (Ratificación : 2006)

Article 1 of the Convention. Basic human rights. The Committee notes the Government’s statement that the protection of basic human rights of migrant workers is one of the key principles in the Concept for the Policy of State Regulation of Migration in the Republic of Armenia (Protocol Decision No. 51 of 30 December 2010), the Action Plan for Implementation of the Policy Concept for the State Regulation of Migration in the Republic of Armenia in 2012–16 (Protocol Decision No. 1593 of 10 November 2011), and the Concept for the Studying and the Prevention of Irregular Migration Originating from the Republic of Armenia (Protocol Decision No. 51 of 29 December 2011). The Government further states that the goal of the Concept for the Policy of State Regulation on Migration is to develop a migration policy that complies with national security and sustainable development, and ensure the rights and interests of the persons involved in migration flows. The Committee asks the Government to provide further information on the measures taken, including under the abovementioned state policies and action plan, to ensure that the protection of basic human rights covers all migrant workers, including those who have left, entered or are staying in the country in an irregular manner.

Articles 2 to 5. Measures to detect, prevent and suppress irregular migration and illegal employment of migrants. The Committee notes that the Concept for the Policy of State Regulation of Migration has among its priorities the improvement of the border management system; the prevention of and the improvement of the legal framework on irregular migration originating from Armenia; and the organization of the fight against trafficking and protection of victims of trafficking. It notes that in the Government’s view readmission agreements are the best means to address irregular migration from Armenia and that several such agreements have been signed or are in the process. The Government also states that under the National Referral Mechanism for Trafficked Persons (Government Decision No. 1585-A of 20 November 2008), the Labour Inspectorate can be an information source for detecting victims of trafficking, and is also competent to detect cases of illegal employment but that no such cases have been identified during inspections. The Committee also notes the National Action Plan for Combating Trafficking in Human Beings and comprehensive programmes on effective management of migration flows and combating trafficking and forced labour in Armenia launched by the ILO and implemented by the social partners. The Committee asks the Government to provide information on the results achieved by measures taken or envisaged under the Concept for the Policy of State Regulation of Migration to detect, prevent and suppress irregular migration from and to Armenia and illegal employment of migrants in the context of Articles 2(1)–5 of the Convention, indicating also the involvement of the social partners in this regard. Please continue to provide information on the measures taken to combat human trafficking, as well as on the impact of readmission agreements to combat irregular migration, and on the activities in the context of the Agreement on Cooperation of the States members of the Commonwealth of Independent States (CIS), to establish contact and exchange information regarding irregular migration, and the results achieved.

Article 6. Effective detection of the illegal employment of migrant workers and sanctions. The Committee notes that section 132 of the Criminal Code provides for imprisonment for the term of five to 14 years. It notes from the Government’s report that between January 2007 and May 2012, the Courts of General Jurisdiction examined 21 criminal cases under section 132 of the Criminal Code (human trafficking and abuse) and two cases under section 132(1) of the Criminal Code (engagement of other persons in prostitution or other forms of sexual exploitation, forced labour or services, or slavery or practices similar to slavery). Regarding the practical implementation of section 132, including liability of persons organizing the illegal employment of migrants, the Government states that the term of imprisonment is (on average) seven years. Please continue to provide information on the practical application of section 132 of the Criminal Code, including the specific offences found and the sanctions imposed on those illegally employing migrant workers, and those organizing irregular migration and the illegal employment of migrants.

Article 7. Consultation with the social partners. The Committee notes that on 30 June 2012 an agreement on making amendments and supplements to the Republic Tripartite Agreement was signed between the Government of Armenia, the Confederation of Trade Unions of Armenia and the Republic Union of Employers of Armenia, which extends the period of validity of the Agreement until 20 June 2015. Please provide information on the outcome of any discussions within the context of the Tripartite Agreement pertaining to the laws and regulations and other measures relevant to the Convention.

Article 8(1) and (2). Legal status in the case of loss of employment. Right to alternative employment, retraining and relief work. The Committee notes that a foreigner having obtained a work permit shall be granted temporary residence status or his or her term shall be extended for the term specified in the permit (sections 15(1)(b) and 24(3) of the Law on Foreigners). It also notes that according to section 28(1)(b) of the Law, a work permit shall be terminated if the term of the employment contract has expired or the contract has been rescinded. With respect to alternative employment, the Committee notes that section 27(2) of the Law on Foreigners provides that in the case of cessation of activities by the employer, the foreign employee can sign an employment contract with another employer for the remaining period of the work permit provided that at least three months are left till the expiry of the term and the new employer has obtained the agreement of the competent body. It also notes that section 27 of the Law on Employment and Social Protection in case of Unemployment of 2005 states that the right to social protection of foreign citizens and persons without citizenship in the case of unemployment is realized in compliance with the national legislation and the international treaties signed by Armenia. The Committee asks the Government to confirm that the permission to reside in the country cannot be revoked if the migrant with temporary residency status loses his or her job prematurely, including for reasons other than those provided in section 27(2) of the Law on Foreigners (cessation of activities of the employer). The Committee also requests the Government to clarify the practical effect on the legal status of the migrant worker who has lawfully resided in the country of section 28(1)(b), in particular whether it automatically implies the withdrawal of the authorization of residence.

Article 9. Equality of treatment of migrants in an irregular situation. The Committee notes the Government’s indication that a migrant who is subject to expulsion, can stay in the country while proceedings are ongoing, as long as his or her presence is necessary for further investigation of the process, as well as for the protection of his or her rights. The Government further indicates that there were no specific cases on migrant workers’ employment, remuneration, dismissal related to the violation of the principle of equal treatment. The Committee reiterates its request to the Government to provide information, including reference to the relevant legislation, on how it is ensured that migrant workers in an irregular situation 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 requests the Government to provide information on any cases concerning breaches of equality of treatment brought before the courts, the final decisions handed down, and remedies provided.

Articles 10 and 12. National policy on equality. The Committee notes the relevant provisions regarding equality and non-discrimination in the national Constitution, the Labour Code and the Law on Employment and Social Protection in the Case of Unemployment. While noting these provisions and the explanations by the Government regarding sections 27–29 of the Law on Foreigners, the Committee refers to Article 12 of the Convention specifying the practical measures to be taken in the framework of a national policy on equality of opportunity and treatment. The Committee asks the Government to provide additional information on the practical measures taken or envisaged by which the national policy on equality is being implemented and observed, including educational programmes and measures to assist migrant workers and their families to integrate in society in accordance with Article 12.

Article 14. Free choice of employment. The Committee notes that under the Law on Foreigners the work permit shall indicate the work to be performed and the employer recruiting the foreign worker (section 24(3)); foreigners shall have the right to freely manage their working skills, choose the type of professions and activities, be engaged in economic activities not prohibited by the law, observing the restrictions prescribed by the national legislation (section 22(1)). Section 22(2) and (3) of the Law provide that when issuing a work permit, the public administration body authorized in the field of employment and occupation of foreigners shall take into account the needs and development of the national labour market, and that during a certain time limit the employer shall be obliged to fill vacancies from among Armenian citizens. Pursuant to section 25(a) and (b), the issuing of a work permit can be refused where the status of the labour market does not allow for the work concerned, and Armenian citizenship is required by law for performing the given work. The Committee recalls that restrictions on the employment of foreign workers having resided lawfully in the country for the purpose of employment, by means of work permits or employment authorizations (including granting work permits only if warranted by the national labour market situation), run counter to the principle of equality of treatment between foreign workers and nationals when the duration of such restrictions exceeds the maximum period of two years allowed by Article 14(a) of the Convention. According to Article 14(c) access can be restricted to limited categories of employment or functions only when necessary in the interests of the State. The Committee asks the Government to indicate the maximum period during which the free choice of employment is not fully enjoyed by migrant workers residing lawfully in the country and the specific restrictions imposed by national legislation during this period. Please also provide information, with an indication of the relevant legal provisions, on the categories of employment or functions to which access is restricted for migrant workers (whether with permanent, temporary or having refugee status) pursuant to section 25(b) of the Law on Foreigners.

Parts III–V of the report form. The Committee requests the Government to provide information on the specific activities carried out by the Ministry of Foreign Affairs, the Ministry of Labour and Social Affairs, the Ministry of Territorial Administration (Migration Agency), the police, the national security service, the Judicial Department and the state labour inspectorate to give effect to the provisions of the Convention. Please also provide information (including studies or surveys) regarding any practical difficulties in applying the Convention.

Statistics. The Committee requests the Government to provide statistical information, disaggregated by sex and nationality, on migration flows from and to Armenia, including the number of foreign workers lawfully in the country and those who have entered Armenia for employment in an irregular situation, and the economic sectors in which they are employed, as well as the number of Armenian citizens leaving to seek employment abroad either under regular or irregular conditions, and the countries of employment. Please also provide information on any progress made in the development of an information system for recording migration flows, including the collection of statistical data on irregular migration.