Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Migration for Employment Convention (Revised), 1949 (No. 97) - Bosnia and Herzegovina (Ratification: 1993)

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes that the Government indicates that the responsibility for the National Immigration Policy falls within the realm of the Ministry of Security while the Ministry for Human Rights and Refugees is responsible for emigration. The Committee also notes the adoption of the Strategy in the area of Migration and Asylum and the Action Plan for the period 2012–15 which has set as strategic goals, among others, the strengthening of the institutional capacities with the purpose of connecting migration and development, ensuring the overall integration of foreigners who have lawfully entered BiH and establishing a Permanent Coordination System in the realization of the migration policy. The Committee further notes the new Law on Movement and Stay of Aliens and Asylum of 10 April 2008 as well as the by-laws adopted for the purpose of proper and clearer enforcement of this law. The Government indicates that the Law ensures coordination of the responsibilities of central Government and entities with respect to employment. Furthermore, in its report submitted to the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) the Government indicates that this law is mandatory in the entire territory of BiH and has introduced a unique approach to work permit requirements in the entire territory (CMW/C/BIH/2, 6 December 2011, paragraphs 11 and ff.). The Committee also notes the Bosnia and Herzegovina Migration Profile for the year 2011 according to which 7,661 temporary permits and 308 permanent permits were granted and that there are currently 1.2 million citizens from BiH residing abroad. In its report to the CMW, the Government also indicates that a Migration Information System was established in 2008 which compiles relevant information related to migration (CMW/C/BIH/2, paragraphs 42 and ff.). The Committee notes that in its concluding observations the CMW expresses concern at the lack of harmonization in the legislation of the different entities in the areas of employment, education and social security (CMW/C/BIH/CO/2, 26 September 2012, paragraph 11). The Committee requests the Government to provide information on the following:

• (i) the implementation of the strategic goals established in the Strategy in the area of Migration and Asylum and the Action Plan for the period 2012–15, in particular the establishment of a permanent coordination system in the realization of the migration policy;
• (ii) the implementation of the new Law on Movement and Stay of Aliens and Asylum adopted on 10 April 2008 as well as its by-laws and the impact of the law on the number of work permits as well as permanent and temporary residence permits;
• (iii) the measures taken or envisaged to ensure a better harmonisation in the legislation of the different entities in the areas of employment, education and social security, in particular the measures to establish a permanent coordination system for the implementation of the migration policy; and
• (iv) statistical data, disaggregated by sex and nationality and if possible by sector of activity on migration flows from and to the country, as well as any other relevant information regarding the situation of migrant workers in the labour market.

Information on general agreements and special arrangements. The Committee notes the information provided by the Government to CMW referring to the signing of bilateral and multilateral treaties with neighbouring and other countries in the field of social security and pensions as well as the negotiations under way aimed at concluding bilateral agreements on labour and employment (CMW/C/BIH/2, 6 December 2011, paragraphs 21 and ff.). The Committee requests the Government to continue to provide information on any agreement concluded by BiH with other States with respect to the issues dealt with by the Convention.

Articles 2, 4 and 7. Migration information and assistance services. The Committee notes the Government’s indication that the Service for Foreigners’ Affairs and the Border Police, working under the Ministry of Security have published information on the Internet in the official languages of the country and in English. The information refers to movement, conditions of entry and residence, and work permits. The Committee notes in particular the efforts made by the Government to provide information and raise awareness about the migration process. The Committee further notes that Migration Service Centres have been created in Banja Luca and Sarajevo to provide information and advice about the opportunities for regular migration to and from countries of the European Union, Switzerland and some overseas countries. Within the project “Capacity building, information and awareness raising to promote regular migration in the Western Balkans” the Migration Service Centers began to work at the Employment Service branch in Banja Luca. The Migration Service Centres have also prepared a guide concerning countries of destination (referring to 40 countries) which offer information about the process of immigration, legal means of obtaining work permits and opportunities for employment, including return procedures. The Committee also notes the brochure “Steps for obtaining work permits” edited in 2012. The Committee requests the Government to continue to provide full information on the measures taken or envisaged to give effect to Articles 2, 4 and 7 of the Convention as well as on the specific agreements with countries of destination or origin of the migration flows affecting Bosnia and Herzegovina with a view to addressing different aspects of labour migration, including admission procedures, so as to facilitate the departure, journey and reception of migrant workers. Please also provide information on any measures taken to assist migrants upon arrival in the country, and on whether any measures to address specific concerns of women migrants are being taken.

Article 3. Misleading propaganda. The Committee notes the Government’s indication that the “strike force in the fight against human trafficking and illegal immigration” organized by BiH (by Decision of the Council of Ministers Official Gazette No. 3/04), whose members come from governmental bodies at the national as well as the entities level contributes to combating misleading propaganda. The Committee further notes from the report submitted by the Government to the CMW that adequate measures are taken in this regard through the Service for Foreigners’ Affairs, the Border Police and other departments (CMW/C/BIH/2, 6 December 2011, paragraphs 77–79). The Committee requests the Government to indicate the concrete measures adopted by the Service for Foreigners’ Affairs and the Border Police to combat misleading propaganda relating to immigration and emigration, and how it is ensured that this information effectively reaches migrant workers, and the impact of such measures. Please also provide information on any activities carried out in this regard within the framework of the World Association of Employment Services (WAPES) referred to by the Government in its previous report.

Article 5. Medical services. The Committee refers to its previous request regarding the implementation of section 4 of the Law on Employment of Foreign Citizens in the Brcko District. The Committee requests the Government once again to clarify whether any requirements linked to a foreigner’s health exist with regard to entry into the country, and to ensure that they only regard infections or illnesses affecting a foreigner’s ability to work.

Article 6. Equality of treatment. 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. Article 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 the same conditions as citizens”. Section 5 of the Labour Law of the Federation of Bosnia and Herzegovina prohibits discrimination against employees and jobseekers on a number of different grounds, including colour, race, sex, language, religion, political or other opinion, national or social origin. Moreover, according to the Government’s report, the applicable laws on labour and employment of the Republika Srpska grant foreigners and stateless persons the same legal status in exercising their rights deriving from work as those granted to national workers and prohibit discrimination. The Committee notes that it is unclear from the abovementioned legislation whether workers holding a temporary residence permit enjoy no less favourable treatment than that applied to nationals with respect to the matters covered in Article 6(1) of the Convention. Recalling that Article 6 of the Convention refers to immigrants lawfully within its territory, the Committee requests the Government to indicate how it is ensured that migrant workers holding a temporary residence permit are treated no less favourably than national workers with respect to the matters covered in Article 6(1). The Committee further requests the Government to provide concrete information on the manner in which sections 8 and 85 of the Law on Movement of the Federation of Bosnia and Herzegovina and Stay of Aliens and Asylum in BiH as well as section 5 of the Labour Law are applied in practice and how they ensure the implementation of the matters covered in Article 6(1)(a)–(d) of the Convention. Please also provide information on any cases of discrimination regarding the subjects covered by Article 6(1) of the Convention, notably equality of treatment in respect of conditions of work, accommodation, social security and trade union rights, brought before national courts and on the decisions handed down.

Article 8. Maintenance of residence in case of incapacity for work. The Committee notes that the Government refers to the situation of temporary migrant workers. The Committee further notes that according to section 68(1)(k) of the Law on Movement and Stay of Aliens and Asylum in BiH the right of residence shall be cancelled if “the circumstances on the basis of which the residence permit was issued have changed to such an extent that they could exclude any possibility to issue a permit” and according to section 68(1)(n) if an “alien has lost his/her means of sustenance”. The Committee requests the Government to provide information on the practical application of these provisions and to indicate how it is ensured that migrant workers who have been admitted on a permanent basis and the members of their family who have been authorized to accompany or join them maintain their right of residence in the case of incapacity for work.

Annexes I and II. The Committee notes from the report submitted by the Government to the CMW that there are several privately owned agencies, companies and web promoters who mediate in the employment of people. The Government indicates that it cooperates actively with them to prevent false information and disinformation of foreigners or their abuse (CMW/C/BIH/2, 6 December 2011, paragraph 78). In view of the growing role of private agencies in the international migration process, the Committee would be grateful if the Government would state the concrete measures that have been taken or are envisaged to regulate the activities of private agencies or encourage self-regulation in order to protect migrant workers from any abuse and misleading advertising. Please also provide further details on sanctions and penalties for infringement.

Parts III and IV of the report form. Enforcement. The Committee notes that the Government indicates that according to the labour administration the courts have not made any decision relating to the application of the Convention. The Committee requests the Government continue to provide information on the monitoring activities, especially those carried out by the labour inspection services, relating to the application of the Convention as well as information on any relevant judicial or administrative decisions. Please provide information on the activities carried out in this respect by the Service for Foreigners’ Affairs and the Border Police.

Part V. The Committee notes that the Government reiterates its previous statement that, in practice, difficulties exist in implementing the Convention owing to the sharing of competences 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.