Solicitud directa (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Convenio sobre los trabajadores migrantes (revisado), 1949 (núm. 97) - Bosnia y Herzegovina (Ratificación : 1993)

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Article 1 of the Convention. Information on national policies, laws and regulations. In its report, the Government informs the Committee of the adoption of: (1) the Law on Aliens 2015, repealing the Law on Movement and Stay of Aliens and Asylum 2009, which regulates the conditions and procedures for the entry of foreigners in Bosnia and Herzegovina (BiH); (2) the Strategy in the area of Migration and Asylum and its Action Plan for the period 2016-2020; and (3) the Rulebook on records in the area of employment, which came into force in 2018 in the Federation of BiH and contains provisions referring to keeping regulated records on aliens, asylees and persons under international protection that are employed or looking for employment. The Committee notes the Government indicates that the implementation of the previous Strategy in the area of Migration and Asylum and its Action Plan for the period 2012–15 led to the creation, in 2018, of the Coordination Body for Migration Issues in BiH, a permanent body in charge of coordinating activities between relevant institutions for Bosnian migrant workers and members of their families abroad, including by assessing future migration movements, proposing measures to improve the country’s migration policies, monitoring their implementation and analysing their effectiveness. It is also responsible for taking measures to harmonize laws regulating the areas of employment, education, and social security. The Coordination Body for Migration Issues in BiH provides a yearly report to the Council of Ministers of BiH, containing information on the success achieved in the realization of its strategic goals. The Committee notes, from the concluding observations of the United Nations Committee on the Protection of the Rights of Migrant Workers and Members of Their Families (CMW), the concerns raised by the complexity of the constitutional structure of BiH and the difficulties of the federal government in carrying out legal reforms in some parts of the State (CMW/C/BIH/CO/3, 4 November 2019, paragraph 13). The Committee notes, from the “BiH Migration Profile for the year 2020” published by the Ministry of Security, that 2,586 work permits were delivered (2,194 to men and 392 to women) that year; and that, according to the National Report on Immigration and Asylum Training, in 2021, 2,775 work permits were issued to aliens, which constitutes an increase by 7.31 per cent. In 2020, 8,293 temporary residence permits and 312 permanent residence permits were granted (compared to 10,133 and 816 permits respectively in 2019). An estimate of 2 million people originating from BiH reside abroad. In this regard, the Committee takes note, from the concluding observations of the CMW, that for the most part BiH is a country of origin of migrant workers, but it is also a country of transit and destination (CMW/C/BIH/CO/3, paragraph 3). The Committee asks the Government to provide information on: (i) the activities undertaken by the Coordination Body for Migration Issues in the realization of the objectives of the Convention, including by providing a copy of the recommendations of the latest yearly report addressed to the Council of Ministers; (ii) the measures taken or envisaged to ensure a better harmonization in the legislation of the different Bosnian entities in the areas of employment, education and social security; and (iii) if available, statistical data, disaggregated by sex, nationality and sector of activity, as well as any other relevant information regarding the situation of migrant workers in the labour market in BiH.

Information on general agreements and special arrangements. The Committee notes the Government’s indication that there are certain agreements in place, such as an agreement between BiH and the European Union on the readmission of persons residing without a residence permit and Implementation Protocols to the Agreement on Readmission with certain states of the European Union. In addition, BiH has signed bilateral agreements on readmission of persons residing without permits with: Albania, Montenegro, Denmark, North Macedonia, Republic of Moldova, Norway, Russian Federation, Serbia, Switzerland and Türkiye. The Committee also notes, from the information provided by the Government to the CMW, that it participated in negotiations for the conclusion of an agreement with the government of Montenegro on the protection of workers from BiH who work in Montenegro and the protection of workers from Montenegro who work in BiH. The Government also indicates its plan to conduct research on the number of BiH nationals that are in other European countries and who do not benefit from social security rights, and its intent to initiate agreements with these countries (CMW/C/BIH/3, 21 December 2017, paragraph 137). The Committee notes, from the concluding observations of the CMW, that measures were taken to: (1) facilitate the voluntary return and reintegration of Bosnian migrant workers and members of their families, including under annex 7 of the Dayton Peace Agreement, and (2) to implement agreements between the Federation of the BiH and the western Balkans countries, Türkiye and the (former) European Community, including protocols with 16 European Union countries thereunder on the readmission of persons residing without authorization, while providing accommodation and care for 30 days upon return. The CMW however, expressed its concern about the lack of durable reintegration measures in place and the lack of information on procedural safeguards for migrant workers covered by readmission agreements (CMW/C/BIH/CO/3, paragraph 59). The Committee requests the Government to describe the measures taken to facilitate the long-term reintegration of migrant workers upon their return to BiH. It also reiterates its request for information on any measures adopted to address the specific concerns of women migrants, such as for example ensuring that its border police and immigration officials are adequately trained, supervised, and monitored for gender-sensitivity and non-discriminatory practices when dealing with women migrants, or that its laws include mechanisms for monitoring workplace conditions of migrant women, especially in the kinds of jobs where they are more present.

Articles 2 and 7. Free migration information and employment services. The Committee notes the Government’s general indication that the Services of Public Employment Offices are free for all job seekers and employers, but observes the lack of information provided relating to employment services available to migrant workers in particular. The Committee therefore reiterate its request to the Government to confirm that the services rendered by its information and public employment services to migrants for employment are rendered free of charge.

Article 3. Misleading propaganda. The Committee notes that the Government states that, under section 12(1) of the Law on Aliens 2015, foreigners are informed of the rights and obligations arising out of the Law at all phases of the migration process. The Government adds that updated information is regularly uploaded on the web page of the Ministry of Security and the Service of Foreigners’ Affairs, which contains sufficient information regarding residence approvals based on employment status in BiH. While noting the Government’s statements on the provision of knowledge and information to migrant workers, the Committee recalls that, under Article 3 of the Convention, it is obliged to take all appropriate steps against the provision of misleading propaganda relating to migration, including when it is targeting the national population. The Committee therefore requests the Government to indicate the concrete measures, envisaged or taken, by the Ministry of Foreigners’ Affairs, the Border Police, the Coordination Bodyfor Migration Issues in BiH, and any other relevant institution to combat misleading propaganda relating to immigration and emigration, including those targeting the national population, for example by addressing xenophobia, prejudices and stereotyping of migrant workers.

Article 5. Medical services at the time of departure, during the journey and on arrival in the territory of destination. The Committee takes due note of the Government’s indication that the Federation of BiH does not impose any requirements in terms of health of foreign nationals and that, in terms of general health requirements, migrant workers are subject only to the general regulations which apply to all workers. It also notes that section 49(1)(f) of the Law on Aliens provides that foreign nationals will be granted with temporary residence on the condition that they provide a health cetificate issued no later than three months prior to the application showing that they do not suffer from any disease threathening public health in BiH. In this regard, the Committee refers to its comment under the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143). The Committee notes however that the Government does not clarify the application of section 4 of the Law on Employment of Foreign Citizens in the Brčko ‘District’. The Committee requests the Government, once again, to clarify whether section 4 of the Law on Employment of Foreign Citizens in the Brčko Districtimposes any requirements linked to a foreigner’s health with regard to entry into the country (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 9 of the Law on Aliens, stipulates that discrimination against aliens on any grounds, including their gender or sex, race, colour of skin, language, religion, political and other opinion, ethnic and social origin, affiliation to a national minority, property status, status acquired by birth, or any other status, is prohibited. It notes that the term “alien” is defined, in section 6, as a person who is not a citizen of BiH. The Committee also notes the Government’s indication that the new Labour Law of the Federation of BiH (2016) expands the provisions prohibiting discrimination (sections 8 to 12): (1) section 8(1) prohibits discrimination of employees and job seekers based on gender, sexual orientation, marital status, family obligations, age, disability, pregnancy, language, religion, political and other opinion, nationality, social background, financial standing, birth, race, skin colour, membership or non-membership in political parties and trade unions, health status, or any other personal characteristic; and (2) section 10(1) provides that discrimination shall be prohibited in relation to: (a) requirements for employment and selection of candidates for a particular job; (b) working conditions and all the rights arising from employment; (c) education, vocational training and professional development; (d) career progress; and (e) termination of a labour contract. The Committee notes, with interest, the Government’s indication that foreign nationals with legal residence and a work permit (whether temporary or permanent) are subject to the general regulations in the field of labour relations applicable to all workers and, therefore, that the provisions on discrimination and protection against discrimination, contained in the Labour Law, also apply to them. It notes, from the concluding observations of the CMW, that in the Republika Srpska, efforts were made to harmonize the law according to which migrant workers in a regular situation and foreign nationals with approved international protection, including temporary protection, have the same rights and obligations as nationals in employment (CMW/C/BIH/CO/3, paragraph 12). Indeed, the Committee notes the Government’s information according to which, in the Republika Srpska, section 2(3) of the Law on Labour, section 3(2) of the Law on Mediation in Employment and Unemployment Rights, and section 3(3) of the Law on Employment of Foreign Nationals and Statelessness Persons in Republika Srpska, provide that workers holding a temporary residence permit enjoy no less favourable treatment than that applied to nationals in respect of the matters covered by Article 6(1) of the Convention. The Committee also notes the Government’s indication that under sections 2 and 3 of the Law on Employment of Foreign Citizens in the Brčko District, any foreigner or stateless person with the approved permanent residence in BiH and any foreigner with the approved international protection in BiH shall have the same rights, obligations and liabilities arising from employment in the Brčko District as those persons who are BiH citizens. The Committee welcomes this information. The Committee requests the Government to provide information on the manner in which these equality provisions, including section 9 of the Law on Aliens and sections 8 to 12 of the Labour Law of the Federation of BiH, are applied in practice and, in particular, 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 courts and on the decisions handed down.

Article 8. Maintenance of residence in the event of incapacity for work. The Committee notes the Government’s indication that the Law on Aliens sets out the requirements for the deliverance of a permanent residence permit (section 79(1)), and the reasons for the cancellation of a permanent resident permit (section 96(1) and (2)). The Committee notes with interest that incapacity for work is not listed as a valid ground for the cancellation of a permanent residence permit. The Committee takes note of this information which addresses its previous request.

Enforcement. The Committee once again asks the Government to provide information on: (i) the concrete measures taken or envisaged to regulate the activities of private employment agencies in order to protect migrant workers from any abuse and misleading advertising; and (ii) the sanctions and penalties for infringement. The Committee also requests the Government to 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.