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

Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - North Macedonia (Ratification: 1991)

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 2012.

Repetition

The Committee notes the Government’s first and second reports on the Convention and the legislation attached. It also notes the information in the Government’s report on the Migration for Employment Convention (Revised), 1949 (No. 97), and the various laws and regulations giving effect to Convention No. 143, in particular the Law on Foreigners and the Law on Employment and Work of Foreigners of 2007, the Law on Criminal Procedure, the Criminal Code, the Law on State Border Surveillance, and the Law on Asylum and Temporary Protection, which according to the Government are among the basic tools to address irregular migration. The Committee also notes the adoption of a Resolution on Migration Policy of The former Yugoslav Republic of Macedonia and the Action Plan for 2009–14, the texts of which are not at the Committee’s disposal in any of the official ILO languages. The Committee requests the Government to provide a copy of the Resolution on the Migration Policy and the Action Plan 2009–14, if available in any of the ILO languages, or to provide a summary of their contents, indicating the relevant sections giving effect to the provisions of the Convention. The Committee also requests the Government to indicate the relevant legal provisions in force for each of the questions in the report form, and to provide copies of the relevant texts.

Article 1 of the Convention. Basic human rights for all migrant workers. The Committee notes the constitutional provisions guaranteeing the fundamental rights and freedoms of citizens and the individual, some of which refer only to citizens, including the non-discrimination provision regarding equality of rights and equality before the law, freedom of association and the right to establish trade unions, and the right to invoke the protection of the rights and freedoms determined by the Constitution before the courts. Article 29 states that foreign subjects enjoy freedoms and rights guaranteed by the Constitution in The former Yugoslav Republic of Macedonia, under conditions regulated by law and international agreements. The Committee also notes the Government’s indication that the National Strategy on Combating Trafficking in Human Beings and Illegal Migration is based on international human rights law, particularly the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Committee asks the Government to provide additional information on the legislative and other measures taken to ensure that the protection of basic human rights, including those relating to the fundamental rights of workers, covers all migrant workers, including those who are in an irregular situation.

Articles 2 and 3. Measures to prevent and address irregular migration and the illegal employment of migrant workers. The Committee notes the ratification by The former Yugoslav Republic of Macedonia of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, and the extensive information in the Government’s reports illustrating the efforts undertaken by the Government to combat trafficking in persons and irregular migration through the adoption of strategies and action plans and the creation of institutions: the establishment of the National Commission for Combatting Trafficking in Human Beings and Illegal Migration in 2001; the National Strategy for Combatting Human Trafficking and Illegal Migration and its National Action Plan for 2009–12; the National Referral Mechanism for victims of trafficking and a special Public Prosecutors Office to coordinate all court proceedings involving trafficking in persons and to refer the cases to a single court; the National Coordination Centre for Border Management (NCCBM) headed by a national coordinator; and the adoption of the National Strategy on Integrated Border Management. The Committee also notes the summary provided by the Government of the annual reports of the National Rapporteur on Human Trafficking and Illegal Migration, drafted through active cooperation with various ministries, non-governmental organizations and the International Organization for Migration (IOM). The Committee notes that the National Rapporteur is responsible for collecting and analysing data and for monitoring and evaluating the overall activities and the Action Plan on Human Trafficking and Illegal Migration. Irregular migration, trafficking in persons and migrant smuggling are regulated under several laws including the Criminal Code of 1996, the Law on State Border Surveillance of 2006, the Law on Foreigners and the Law on Employment and Work of Foreigners.

The Committee further notes the information in the Government’s report regarding the measures to detect and prevent illegal employment of migrant workers, and the Government’s statement that the fight against illegal employment is an important part of its policy to address irregular migration. The Committee notes that The former Yugoslav Republic of Macedonia is mainly a country of transit and of origin with regard to irregular migration and trafficking in persons, and to a lesser extent a country of destination, including for employment. The Government indicates that migrants who enter the country for employment are usually employed as seasonal farm workers and construction workers, and that female migrants are usually employed in catering facilities and as bartenders, singers and dancers. The Committee notes the statistics provided by the Government for 2009 on foreign persons who have been prevented from entering the country or who have been discovered being in the country contrary to immigration law, and the information on the criminal charges and misdemeanour charges initiated under the applicable legislation. The Committee notes that the Ministry of Interior conducted a number of campaigns and controls in catering facilities with a view to detecting the illegal employment of migrants and crimes relating to trafficking in persons and migrant smuggling. The Committee asks the Government to continue to provide information on the measures taken and results achieved, including under the various national strategies and action plans to combat trafficking and irregular migration: (i) to suppress irregular migration, including trafficking in persons, and the illegal employment of migrants; and (ii) to detect and punish the organizers of illicit or clandestine movements of migrants for employment and those who employ migrant workers in an irregular situation. Please also provide further information on the activities of the National Commission for Combating Trafficking in Human Beings and Illegal Migration, the NCCBM and the Public Prosecutors Office, as well as the National Rapporteur. In this context, please specify the number and nationality of migrants who have been illegally employed or subjected to abusive conditions, and the nature of the infringements noted. Please also indicate whether and, if so, how employers’ and workers’ organizations are consulted and are able to furnish information with a view to identifying irregular migration and the employment of migrants in abusive conditions.

Article 4. Measures to establish systematic contact and exchange of information with other States. The Committee notes the reference made by the Government to the bilateral and international agreements, protocols and conventions, it has signed or ratified and the measures to harmonize the national legislation with relevant European Council directives. The Government states that these measures include visa control, border control, the exchange of information, cooperation and coordination of activities with other countries, return policy, readmission and introduction of common standards on return policies, sanctions for transporters, employers and punishments for authors of trafficking in persons and smuggling. The Government is also actively participating in a number of international and regional initiatives and projects aimed at addressing trafficking in persons and irregular migration. The Committee requests the Government to provide additional information on the results achieved by the specific measures taken to establish systematic contact and exchange of information with other States on measures to suppress clandestine movements of migrant workers and the illegal employment of migrants, and against the organizers of such activities.

Article 5. Authors of trafficking for labour purposes. The Committee notes the Government’s indication that pursuant to section 116(1) of the Criminal Code, the criminal legislation is applicable to everyone who commits a crime on the territory of The former Yugoslav Republic of Macedonia, and that sections 117 to 121(a) of the Criminal Code regulate the application of the criminal legislation to citizens of The former Yugoslav Republic of Macedonia and foreigners. The Committee requests the Government to clarify whether under the applicable legislation the authors of labour trafficking can be prosecuted whatever the country from which they exercise their activities, and whether any arrangements on the national or international level have been made in this regard.

Article 6. Penal, civil and administrative sanctions. The Committee notes the information provided by the Government regarding sections 418-a, 418-b and 418-c of the Criminal Code criminalizing human trafficking, migrant smuggling and the organizing and instigating of these crimes, and the related penalties and sanctions imposed, which include imprisonment. It also notes the criminal offences regarding unlawful entrance and transit and unlawful residence, and the related penalties, including imprisonment, imposed under the Law on Foreigners. The Law on Employment and Work of Foreigners provides the misdemeanours and fines against legal entities and natural persons who appear as employers, persons responsible for legal entities and the foreign workers themselves. The Committee also notes the statistics, disaggregated by sex, collected by the National Rapporteur regarding victims of trafficking and reported persons for committing the crime of trafficking in persons. The Committee requests the Government to continue to provide information of the activities of the competent authorities enforcing the legislation (number of cases, infringements registered, sanctions imposed), against those illegally employing migrant workers and against the organizers of irregular migration, including trafficking in persons.

Article 7. Consultations with workers’ and employers’ organizations. Recalling that pursuant to Article 7 of the Convention, 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 legislative and practical initiatives designed to detect, eliminate and prevent migration in abusive conditions and the illegal employment of migrant workers.

Article 8(1) and (2). Legal status in the event of loss of employment. The Committee notes sections 8(2)–(7) of the Law on Employment and Work of Foreigners regarding the issuing of a “personal work permit”, an “employment permit” and a “work permit”, and section 8(8) of the Law providing that a work permit can be revoked if the temporary residence permit or permanent residence permit has expired pursuant to law. The Committee notes that an “employment permit” is issued for a maximum of one year (section 8(4)) and is linked to the employer who has applied for the work permit, and can, except in the cases set out in paragraphs 6 and 9 of section 13, not be extended after expiry. The “employment permit” shall be discontinued if the labour relationship is terminated (section 13(3)). The Committee further notes that section 58 of the Law on Foreigners provides that the temporary residence permit issued for purposes of employment, work, or self-employment shall be issued for the period corresponding to the period of validity of the work permit but for a maximum of one year with the possibility of being extended. Noting that the period of validity of the temporary residence permit for employment, occupation or self-employment appears to be linked to the period of validity of the work permit, the Committee requests the Government to indicate the measures taken or envisaged to ensure that the mere loss of a migrant worker's employment, especially those holding an “employment permit” does not automatically imply the withdrawal of his or her authorization of residence or work permit, and that such workers enjoy equality of treatment with nationals in the areas referred to in Article 8(2).

Article 9(1) and (2). Equality of treatment in respect of rights arising out of past employment. The Committee notes that no information has been provided regarding the application of Article 9(1) of the Convention. The Committee further notes that section 103 of the Law on Foreigners provides that the decision on expulsion shall be taken by the Ministry of Internal Affairs and shall contain the time limit within which the foreigner is obliged to leave the territory “taking into account the financial means for leaving the Republic of Macedonia”. The foreigner has the right to file a complaint against the expulsion decision with the competent commission of the Government within eight days of the decision but the complaint against the decision shall not stay the effect of the decision in the case of a foreigner unlawfully staying in the country or staying on the basis of a temporary residence permit for less than two years. The Committee requests the Government to provide information, including reference to the specific provisions of the relevant legislation, on the measures taken to ensure that irregular migrant workers 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 and the final decisions handed down. Recalling Paragraph 33 of the Migrant Workers Recommendation, 1975 (No. 151), the Committee asks the Government to give due consideration to amending section 13(5bis) and (8) with a view to permitting migrant workers who contest an expulsion order to reside in the country for the duration of the case.

Article 9(3). Costs of expulsion. The Committee notes that pursuant to section 105 of the Law on Foreigners a foreigner who is in an irregular situation and who is obliged to leave the territory following an expulsion decision of the Ministry of Interior must leave the territory on a voluntary basis immediately or within the specified period, subject to deportation. Section 111 of the Law on Foreigners provides that costs arising from a foreigners’ temporary detention in the reception centre as well as the costs arising from his or her deportation shall primarily be borne by the foreigner, and that in cases where no means can be ensured in any way the costs shall be covered by the Government. The Committee draws the Government’s attention to paragraph 310 of its 1999 General Survey on migrant workers, in which it indicates that: (a) if the migrant worker is in an irregular situation for reasons which cannot be attributed to him or her, 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) if, on the contrary, the migrant worker is in an irregular situation for reasons which can attributed to him or her, only the costs of expulsion may not fall upon the migrant. The Committee invites the Government to take adequate steps to bring the legislation into line with the Convention, and to report on the progress made.

Articles 10 and 12. National policy on equality of opportunity and treatment. The Committee notes section 88 of the Law on Foreigners providing that holders of a permanent residence permit shall enjoy the same rights as those of citizens, unless laws otherwise provide, including with respect to access to employment, education and vocational training, recognition of professional diplomas, certificates and qualifications, social protection and support, freedom of association and membership in organizations. Section 73 grants a close family member of a permanent residence holder or a holder of a temporary residence permit of one year the right to education, vocational education, employment and self-employment under the conditions as stipulated in the law. The Government further indicates that asylum seekers, persons under humanitarian protection, victims of trafficking in persons, foreigners with recognized refugee status and foreigners with permanent residence have full access to social rights. Furthermore, section 4(7) of the Law on Employment and Work of Foreigners prohibits the employer, when employing a foreigner, including a candidate for employment, to apply unequal treatment with respect to a wide range of grounds. The Committee also notes that the Law on the Prevention and Protection against Discrimination prohibits direct and indirect discrimination with regard to labour relations, education, social security, housing, culture and participating and acting in a trade union in respect of a number of grounds, including citizenship or any other ground established by the law or by ratified international agreements (section 4). However, section 14(1) of the Law allows for different treatment of persons which are not citizens of The former Yugoslav Republic of Macedonia with regard to the rights and freedoms granted in the Constitution, the legislation and international agreements to which The former Yugoslav Republic of Macedonia is a party, and which directly arise out of the citizenship of The former Yugoslav Republic of Macedonia. The Committee recalls that Article 10 of the Convention requires ratifying states to declare and implement a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights and of individual and collective freedoms of persons who are as migrants or as members of their families lawfully in the territory, and that this policy should cover both permanent or temporary migrant workers. Article 12 of the Convention specifies the 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 measures taken or envisaged by which the national policy on equality is being declared, implemented and observed, and to provide information on the practical application of sections 4 and 14(1) of the Law on the Prevention and Protection against Discrimination, sections 4(7) and 15(6) and (7) of the Law on Employment and Work of Foreigners and section 88 of the Law on Foreigners to both permanent and temporary migrant workers lawfully in the country, including posted workers, including any cases brought by migrant workers to the Commission for Protection against Discrimination, the Office of the Ombudsperson, the competent authorities, and the courts, and the outcome of these cases. Finally, the Committee requests the Government to provide information, as detailed as possible, in reply to the questions raised with respect to Article 12(a)–(g) of the Convention, indicating the specific legal provisions.

Article 11. Definition of migrant worker. The Committee requests the Government to specify the maximum period laid down for the purposes of Article 11(2)(b) and (e) of the Convention.

Article 14. Free choice of employment and restrictions. The Committee notes article 32 of the Constitution granting everyone the right to work and to free choice of employment. Section 73 of the Law on Foreigners grants a close family member of a permanent residence permit holder or a holder of a temporary residence permit of one year the right to employment and self-employment under the conditions as stipulated in the law, while section 88 of the Law provides that foreigners with a permanent residence permit shall enjoy the same rights as citizens, including access to employment or self-employment unless other laws provide otherwise. The Committee also notes that pursuant to the Law on Employment and Work of Foreigners the personal work permit can be issued for a fixed-term period of 1 to 3 years or for a non-fixed-time period (section 8(3)) and is a renewable or permanent work permit to facilitate free access to the labour market (section 12(1)); section 12(3) lists the foreigners to whom such a permit can be issued, including close family members, foreigners with recognized refugee status and asylum seekers whose request for asylum has not been resolved within one year. The Committee requests the Government to provide additional information on the application in practice of sections 73 and 88 of the Law on Foreigners and sections 8 and 12 of the Law on the Employment and Work of Foreigners, indicating any restrictions imposed regarding the free choice to employment of migrant workers with a personal work permit and members of their close families. The Committee also requests the Government to indicate the categories of employment or functions in the state institutions and administrative departments to which access is restricted for migrant workers. Please also provide relevant statistics, disaggregated by sex and nationality, if possible, on the type of work permits that have been issued to migrant workers and members of their family covered by the Law on Employment and Work of Foreigners.

Parts III–V of the report form. The Committee requests the Government to provide information on the monitoring activities, especially those carried out by the labour inspectorate services relating to the application of the Convention, including details on their findings, and on any other initiatives taken by the competent bodies with a view to promoting the application of the Convention. The Committee encourages the Government to gather and submit information on any relevant decisions involving issues relating to the application of the Convention handed down by courts or competent administrative bodies.

Statistics. Please continue to provide statistical data, disaggregated by sex and nationality, on the number of foreigners employed in The former Yugoslav Republic of Macedonia, indicating, if possible, the work permit (personal work permit, employment permit and work permit), as well as the sectors in which they are being employed. Please also provide statistical data, disaggregated by sex and nationality, on the number of migrant workers entering, transiting or leaving The former Yugoslav Republic of Macedonia in an irregular situation.