Solicitud directa (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Convenio sobre los trabajadores migrantes (disposiciones complementarias), 1975 (núm. 143) - Serbia (Ratificación : 2000)

Article 1 of the Convention. Basic human rights. The committee takes note of the information provided by the government on the adoption of legislation and policies in the field of migration and refers in its regard to its comment on the application of the Migration for Employment Convention (Revised), 1949 (No. 97). Regarding specifically the protection of migrant workers’ basic human rights, the Committee notes that the Commissariat for Refugees and Migration is responsible for providing support to migrants, especially when pertaining to vulnerable groups and that the Center for the Protection of Victims of Trafficking in Human Beings provides protection to potential victims of human trafficking. The Committee also notes the Government’s indication that the law provides for specific protective measures for potential victims of human trafficking, who shall be granted temporary residence and access to the labour market and education (Article 28 of the Law on Foreigners (No. 24/18)). In the context of removal (expulsion) procedures, the competent authorities are required to take into consideration the needs of migrants from vulnerable groups (such as minors, persons deprived of their legal capacity, persons with disabilities, elderly persons, pregnant women, single parents, and persons who have been subjected to torture, rape or other grave forms of violence) and to act in conformity with international treaties (section 58 of the Law on Foreigners (No. 24/18)). In this regard, the Committee notes that the United Nations (UN) Committee on Economic, Social and Cultural Rights expressed its concern about the continuing inadequate reception conditions of migrants and recommended that the Government improve the conditions of reception centres and access to health care and other basic services (E/C.12/SRB/CO/3, 6 Avril 2022, para. 32). Furthermore, the UN Committee Against Torture reminded the Government that it should ensure mandatory training on the absolute prohibition of torture and ill-treatment for all law enforcement personnel and other public officials in contact with migrants deprived of their liberty (CAT/C/SRB/CO/3, 20 December 2021, para. 36). In light of the above, the Committee requests the Government : (i) to indicate how it is ensured in practice that all migrant workers in irregular situations have access to complete information about their labour rights and the means of redress available, in a language understandable to them, as well as to legal assistance; (ii) to provide detailed information on the activities of the Commissariat for Refugees and Migration and the other competent authorities in this regard (such as for example, awareness campaign activities, training on the respect of basic human rights, improvement in the reception conditions of migrant workers, etc.); (iii) to provide data disaggregated by sex and origin on the number of migrant workers in an irregular situation that have filed administrative or judicial claims with respect to violations of their basic human rights or rights arising out of past employment; and (iv) to provide information on the number of complaints lodged by migrant workers alleging exploitative working conditions (such as for example non-payment or under-payment of wages, social security and other benefits) brought to the attention of the labour inspectors and penalties imposed on employers engaging in illegal employment of migrant workers.

Articles 2 and 6. Identifying illegal employment and migration in abusive conditions. The Committee notes that the report of the Government is silent on its requests for information on the measures adopted to collect data on migrant workers engaged in undeclared work, and on the penalties imposed on employers by the labour inspectorate. The Committee recalls once again that each Member for which this Convention is in force shall systematically seek to determine whether there are illegally employed migrant workers on its territory and whether they are subject to abusive migration conditions. The Committee therefore requests the Government to take the necessary measures to collect data, if possible disaggregated by sex and country of origin, on migrant workers engaged in undeclared work.

Article 8. Legal status in the case of loss of employment. The Committee notes the Government indication that, pursuant to the Law on the Employment of Foreigners (No. 128/14 as amended), if the conditions of the law are met, foreign citizen shall have equal rights and obligations as nationals in terms of labour, employment, self-employment, and unemployment (section 4). The Committee requests again the Government to indicate whether migrant workers who have lawfully resided in the country and who have lost their employment prematurely may retain their legal residency or other stay authorization in the country.

Article 9(1) and (2). Equality of treatment of migrants in an irregular situation. Rights arising out of past employment. Noting that the report of the Government is silent on this issue, the Committee reiterates its request for information on the measures taken to ensure that migrant workers in irregular situations enjoy in practice their rights arising out of past employment, as regards remuneration, social security and other benefits (including references to the relevant legislation and practical cases brought to the attention of the authorities).

Article 9(3). Costs of expulsion. The Committee recalls that, that pursuant to section 56 of the former Law of Foreigners (2008), the costs of escort to a diplomatic or consular mission or to the shelter, or the state border, are to be borne by the foreigner whereas the Convention states that none of the costs of expulsion are to be borne by the migrant worker. The Committee notes the Government’s indication that a provision comparable to former section 56 was enacted as section 94 of the new Law of Foreigners (No. 24/18). The Government specifies that the costs referred to under section 94 are to be borne by the foreign person, the person who had undertaken to bear the costs of his or her stay, or by the State if the costs cannot be collected from these persons. It also specifies that, in practice, most foreigners in the process of forced removal comply voluntarily with the decision. They may be placed under “compulsory residence” as an alternative to being placed in a shelter. The Committee reminds the Government that administrative costs, such as costs arising out of placing a foreigner under supervision or surveillance, or costs arising from foreigners’ temporary detention in reception centres, within the context of escorting the migrant worker to the border, should be borne by the State (General Survey of 2016, para. 320). The Committee therefore requests the Government to adopt measures, including through the revision of section 94 of the Law of Foreigners (No. 24/18), to ensure that none of the costs of expulsion are borne by the migrant worker.

Articles 10 and 12. National policy on equality of opportunity and treatment. The Committee notes that the Government does not provide specific information on the adoption of an active policy to specifically ensure equality of opportunity and treatment for migrant workers. It however notes that the Government has adopted a series of policies in the field of migration, such as Migration Management Strategy of 2009, the Strategy for Combatting Irregular Migration (2018-2020), and the Strategy on Economic Migration (2021-2027), but that none of these policies aim specifically at promoting equality of opportunity and treatment for migrant workers. It also notes that the Government provides detailed information on the legislative framework related to the area of migration. In particular, the Government indicates that a series of new laws were enacted in 2018, namely: the Law on Foreigners (No. 24/18), the Law on Border Control (No. 24/18) and the Law on Asylum and Temporary Protection (No. 24/18). The area of migration is also regulated by the Law on the Employment of Foreigners (No. 128/14 as amended) and the Law on Migration Management (No. 107/12). The Committee notes that pursuant to the Law on the Employment of Foreigners (Nos 128/14 as amended) if the conditions established by law are met, foreign citizen shall have equal rights and obligations as nationals in terms of labour, employment, self-employment, and unemployment (section 4). The Government also refers to the Labour Law which prohibits discrimination in employment and occupation (sections 18-23) and protects trade union rights (section 206). Regarding social security rights, the Government refers to the application of the Law on Employment and Unemployment Insurance (No. 36/09 as amended) and the Law on Pension and Disability Insurance (No. 34/03 as amended) to migrant workers. While taking note of this information, the Committee recalls that the Convention requires Governments to pursue an active national policy to ensure equality of opportunity and treatment for migrant workers, in the form of a coordinated range or measures, in accordance with Article 12, which may be implemented progressively and continuously adapted to respond to changing national circumstances, and which should be periodically reviewed and evaluated, and where necessary, revised (General Survey of 2016, paras. 166 and 168). The Committee therefore requests the Government to adopt measures to implement a national policy specifically designed to promote equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights, and or individual and collective freedoms for migrant workers and members of their family legally residing in the country. The Committee also requests the Government to provide information on the periodic revision and evaluation of this policy.

Article 14. Free choice of employment and permissible restrictions. The Committee notes the Government indication that “work permits for employment” are issued at the request of the employer for a period that cannot exceed the period of authorized stay (usually one year) and can be renewed. The Committee reiterates its request to the Government: (i) to indicate whether migrant workers under “work permits for employment” and “work permits for special cases of employment” for more than two years may freely change their employers; and (ii) to specify whether certain categories of employment or functions (for instance in the state institutions and administrative departments) are not accessible to foreigners.

Application of the Convention in practice. The Committee takes note of the statistical information disaggregated by sex on the number of foreign workers employed in Serbia, showing that, in 2020, the National Employment Service (NES) issued a total of 12,931 work permits to foreign nationals; and the main countries of origin of foreign workers were China (3,515 men and 595 women), the Russian federation (1,976 men and 459 women), and Turkey (1,489 men and 71 women). It also notes that in 2020, 1,196 citizens of the Republic of Serbia were employed abroad, and that the main countries of destination were the United States of America, the Russian Federation, Germany, Hungary, Czech Republic, Slovenia, Croatia, and Slovakia. The Committee further notes that, in 2020, there were no decisions from the labour inspectorate or the four appellate Courts on the issue of discrimination towards foreign workers. For the same year, the Government reports that there were 54 pending cases before higher and appellate courts on the application of section 388 of the Criminal Code (prohibition of trafficking in human beings). The Government also reports for the period 2019-2020, 20 verdicts before the Court of Appeals of Novi Sad, 24 verdicts before the Court of Appeals of Belgrade and 54 verdicts from the Court of Appeals of Nis, on the application of section 350 of the Criminal Code (illegal crossing of the state border and smuggling of people). The Committee requests the Government: (i) to continue to collect statistical information and to report on the situation of migrant workers in Serbia and of nationals emigrating abroad; (ii) to communicate on the activities of the labour inspectorate regarding the application of the Convention in practice, such as information on the number of cases brought to the attention of or detected by the labour inspectorate on instances of unequal of treatment of migrant workers; and (iii) to continue to provide information on the relevant cases brought to court and, on their outcomes (such as information on the number of cases pending, on the final findings and on the penalties imposed).