Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 - Bosnie-Herzégovine (Ratification: 1993)

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Article 1 of the Convention. Basic human rights of all migrant workers. The Committee notes, with interest, the Government’s indication, in its report, that the Constitution of Bosnia and Herzegovina (BiH) and the Constitution of the Republika Srpska prescribe that all ‘persons’, including migrants in a regular or irregular situation, shall enjoy fundamental human rights and freedoms. The Committee notes that Article 3 of the Constitution of BiH lists the human rights and fundamental freedoms, and that these include the right to a fair hearing in civil and criminal matters, and other rights relating to criminal proceedings, the right to education, and the right to liberty of movement and residence. The Committee welcomes the adoption in 2015 of the Law on Aliens (repealing the Law on Movement and Stay of Aliens and Asylum, 2009) which prohibits in section 9 discrimination against all foreigners on the basis of gender, race, skin colour, language, religion, political or any other opinion, national or social origin, relation to national minority, property, birth or other status, regardless of whether they are in a regular or irregular situation. The Committee takes note of this information, which addresses its previous request.

General conditions for granting temporary residence. The Committee recalls that section 49(1)(f) of the Law on Aliens provides that a foreign national 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 posing a threat to public health in BiH. Although the Government states that the Law on Aliens does not prescribe the contents of the medical examinations, it refers to section 6(s) of the Law on Aliens, which defines a threat to public health as any disease with potential epidemiological characteristics, as defined under the international health care regulations of the World Health Organization, as well as other contaminative or parasitic diseases, if these are the subject of safety regulations applying to BiH citizens. The Committee requests the Government to provide, if available, concrete examples where temporary residence was refused based on a potential threat to public health.

Articles 2 to 6. Measures to detect and address irregular migration. The Committee notes the data provided by the Government on the number of deportation measures between 2012 (562) and 2016 (418), the countries of origin concerned (by decreasing order in the number of deportations: Serbia, Afghanistan, Türkiye, Syria, Kosovo, Croatia, Montenegro, India, etc.). It also notes the information provided by the Government on the provisions of the Law on Aliens which sanction legal and natural persons who employ a foreigner without a work permit. However, the Committee notes that the Government does not provide specific information on the sanctions imposed on authors of human trafficking. The Committee notes that the Government established the Coordination Body for Migration Issues in BiH in 2018, which submits a performance report to the Council of Ministers of BiH every year, containing information on the implementation of the Strategy in the Area of Migration and Asylum and its Action Plan, but the Government does not provide a copy of the performance report in question. The Committee notes that the Strategy in the Area of Migration and Asylum and the Action Plan for the period 2016–20 included the goals of strengthening the fight against illegal migration and reducing human trafficking in BiH. It also notes the Government’s efforts to address and detect irregular migration, and more specifically human trafficking, through the adoption of the Strategy for Fight Against Organized Crime in BiH 2017–20, the Strategy for Integrated Border Management in BiH 2019–23 and the Immigration and Asylum Training Programme 2021–25. However, it notes in its concluding observations, the United Nations Committee on Elimination of Racial Discrimination (CERD) expressed concern at: (1) reports about the persistence of trafficking in persons for economic and sexual exploitation, including Roma children; and (2) the absence of information on the assistance and support provided to victims of trafficking, as well as on the concrete results achieved through the 2016–2019 National Anti-Trafficking Action Plan on the reduction of trafficking in the country, (CERD/C/BIH/CO/12-13, 10 September 2018, paragraphs 33 and 35). The Committee further 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), that despite the efforts taken to prevent and combat human trafficking, including through the adoption of the Action Plan against Trafficking in Human Beings 2016–2019, BiH remains a source, transit and destination country for the smuggling of migrants, and for victims of trafficking, including women and children, in particular Roma children (CMW/C/BIH/CO/3, 4 November 2019, paragraphs 8 and 61). The Committee notes the indication of the Government that, in the Brčko District, the inspections conducted in 2017 by the labour inspectors did not register any cases of illegally employed foreigners. The Committee requests the Government to pursue its efforts in the fight against human trafficking and requests the Government to provide:

• (i) information on the results of the measures taken under the Strategy in the Area of Migration and Asylum and the Action Plan for the Period 2016–20 to suppress clandestine movements of migrants for employment and the illegal employment of migrants, including the performance report of the Coordination Body for Migration Issues in BiH, and on the specific measures taken to combat trafficking in persons, in particular of women, and on their impact on preventing and eliminating this phenomenon;
• (ii) information on the adoption and implementation of a new Strategy in the Area of Migration and Asylum and the Action Plan; and
• (iii) updated statistical data and other information on the situation of irregular migrant workers in the country collected by the Ministry of Security.

The Committee also repeats its request to the Government to provide information on:

• (i) whether the authors of labour trafficking can be prosecuted whatever the country from which they exercise their activities, and whether any arrangements at the national or international level have been made in this regard;
• (ii) any administrative, civil and penal sanctions applicable to persons illegally employing migrant workers, organizing the movements of migrants for employment in abusive conditions or knowingly providing assistance to such movements, whether for profit or otherwise, specifying the relevant legislative provisions; and
• (iii) the application of the sanctions contemplated in the laws regulating the employment of foreigners of the Federation of BiH, the Republika Srpska and the District of Brčko.

Article 7. Consultation with social partners. The Committee notes that the Government states that: (1) the regulations adopted at the level of the Federation of BiH are subject to consultations with the Economic and Social Council of the Federation of BiH (a tripartite body); and (2) the Labour Inspection Service is obliged to submit its annual performance report for consideration to the Economic and Social Council of Republika Srpska, and that through this process, the social partners are involved in the initiatives designed to detect, eliminate and prevent forced migration and illegal employment of migration workers. Recalling that BiH remains a source, transit and destination country for the smuggling of migrants, and for victims of trafficking, the Committee again requests the Government to take pro-active measures to involve the social partners in the initiatives designed to detect, eliminate and prevent migration in abusive conditions and the illegal employment of migrant workers.

Article 8. Legal status in the event of loss of employment. The Committee notes the Government’s indication that section 67 of the Law on Aliens provides that a foreigner’s temporary residence in BiH issued on grounds of a work permit shall not cease if, during their approved temporary residence in BiH, they change employer and submit a new work permit or upon the evidence that they initiated the procedure to the Service for issuance of a new work permit. The Government also indicates that, in Republika Srpska, pursuant to sections 35, 36 and 38 of the Law on Employment Intermediation and Rights during Unemployment, the rights arising out of employment (right to certain services related to employment intermediation provided at no cost, preparation for employment, information about employment opportunities, remuneration, health, pension and disability insurance) shall be exercised by foreigners and stateless persons under substantially the same conditions as citizens. In this regard, in Republika Srpska, a migrant worker who loses his or her job shall have the opportunity to exercise the prescribed rights and be employed again with another employer. The Committee further notes the Government’s indication that, in the Brčko District, a foreign citizen or a stateless person may be registered at the Register of unemployed persons of the Employment Office of the Brčko District if they have a permanent or temporary residence permit. Registered foreign citizens have the right to obtain information at the Employment Office of the Brčkо District about the possibilities and requirements for employment intermediation under conditions defined by the Law on Employment and Rights During the Employment in the Brčkо District. However, the Committee notes, with regret, the Government’s indication that these rights apply only as long as migrant workers have a permanent or temporary residence permit, and that the termination of the employment contract with the employer has the effect of terminating the work permit. In reply to the Committee’s previous comment, the Government indicates that all foreigners, including migrant workers, which file an appeal against a decision of deportation may stay in BiH until the appeal procedure has been completed. Section 105(8) and (9) of the Law on Aliens prescribes that an appeal filed against the decision of deportation shall postpone the execution of the decision, and the Ministry of Security shall pass a decision within 15 days as of the receipt of the appeal. However, the Committee notes from the concluding observations of the CMW, that there is a short time limit of 24 hours for migrant workers and members of their families to lodge administrative appeals against such a decision, and that an appeal against an expulsion order to the courts does not have automatic suspensive effect: the appellant has to provide specific reasons, such as invoking the principle of non-refoulement, for it to have suspensive effect (CMW/C/BIH/CO/3, paragraph 35). Recalling that Article 8(1) of theConvention expressly requires that the loss of employment shall not in itself lead to the revocation of the work or residence permit, the Committee requests the Government to take measures to ensure that:

• (i) migrant workers who have lost their employment are not regarded in an irregular situation by the mere fact of the loss of their employment;
• (ii) migrant workers enjoy equal treatment with nationals in the areas of security of employment, the provision of alternative employment, relief work and retraining; and
• (iii) these guarantees, in accordance with Article 8(1) and (2) of the Convention, apply throughout the country, including in the Brčkо District.

The Committee also asks the Government to provide information on the extent to which migrant workers awaiting expulsion make use of the right to appeal.

Article 9(1) and (2). Equality of treatment in respect of rights arising out of past employment. The Committee notes the Government’s indication that, in the Federation of BiH, only migrant workers who fulfil the requirements prescribed by the law (legal residence and a work permit) are subject to the general regulations in the field of labour relations, which apply to all workers. The Committee recalls that according to Article 9(1) of the Convention, migrant workers in an irregular situation should enjoy equality of treatment for themselves and their families in respect of rights arising out of past employment as regards remuneration, social security and other benefits. The purpose of this Article is to ensure that illegally employed migrant workers are not deprived of their rights in respect of the work actually performed. Moreover, in the event of a dispute, the worker should have recourse to judicial remedies or the possibility of presenting his or her case to a competent body and enjoy equal treatment with national workers as regards legal assistance. The Committee therefore once again requests the Government to:

• (i) take the necessary measures to ensure that migrant workers in an irregular situation enjoy the rights arising out of past employment in terms of remuneration, social security and other benefits and to provide information on any developments in this regard; and
• (ii) provide information on any cases concerning breaches of equality of treatment brought before courts and the decisions handed down.

Article 9(3). Cost of expulsion. The Committee notes that section 115(1) of the Law on Aliens provides that a foreigner is required to pay the costs of his/her return to the place of repatriation. Section 115(3) provides that, in order to secure the removal of aliens from BiH, an alien shall be placed under surveillance pending his/her departure, and all costs related to the realization of that surveillance shall be covered by the alien under surveillance. Section 111(5) provides that funds which are temporarily confiscated from an alien shall be used to cover the costs of repatriation and surveillance. The Committee once again recalls that according to Article 9(3) of the Convention, in case of expulsion of the worker or his or her family, “the cost shall not be borne by them”. The Committee further draws the Government’s attention to paragraphs 318 and 320 of its General Survey concerning the migrant workers instruments of 2016, that a clear distinction should be made between: (a) cases where migrant workers were in irregular situations for reasons which cannot be attributed to them (such as redundancy before the expected end of contract, or where the employer failed to fulfil the necessary formalities), in which case the cost of their return, as well as the return of family members, including transport costs, should not fall upon the migrant workers; and (b) cases where migrant workers were in an irregular situation for reasons which can be attributed to them, in which case, only the actual costs of expulsion may not fall upon the migrant. The Committee also considered that costs of surveillance constitute administrative costs within the context of escorting the migrant worker to the frontier that must be borne by the State which wishes to ensure that the worker and his or her family actually leave the country following a decision to expel. The Committee notes the Government’s indication that following the adoption in 2016 of the Law on Free Legal Aid, the Office for Free Legal Aid was created to provide free legal aid to persons in the process of expulsion. The Committee once again requests the Government to:

• (i) take the necessary measures to amend the Law on Aliens so as to ensure that at least the costs arising out of placing a foreigner under supervision are not borne by the migrant worker, and to provide information on any development in this regard; and
• (ii) provide information on the staffing and activities of the Office for Free Legal Aid.

Article 10. Promotion of equality of opportunity and treatment.Noting that the Government does not provide information on this point, the Committee once again requests the Government to:

• (i) take the necessary steps to formulate and implement a policy on equality of opportunity and treatment in cooperation with workers’ and employers’ organizations and provide information in this regard; and
• (ii) provide information on the implementation of the Strategy in the Area of Migration 2016–20 and its contribution to the policy on equality of opportunity and treatment for migrant workers.

Article 12. Legislation. The Committee notes with satisfaction that the new Labour Law 2016, removed the legal exceptions to the principle of equal treatment contained in section 5 of the previous Labour Law. It notes the Government’s indication that, under section 9 of the Law on Aliens 2015 and section 8 of the Labour Law 2016, the law prohibits discrimination against all foreigners, regardless of whether they are migrant workers in a regular or irregular situation. The Committee notes the Government’s statement that it is not aware of any cases of judicial procedures in respect of discrimination of migrant workers in the reporting period. The Committee refers to its comments on the application of the Migration for Employment Convention (Revised), 1949 (No. 97).

Article 14. Restrictions on the employment of migrant workers. The Committee notes that section 67(3) of the Law on Aliens provides that a work permit shall be approved for the period covering validity of the work permit plus 30 additional days, but no longer than a year, and may be extended but only on the same grounds on which the worker was initially granted temporary residency. Recalling that the maximum period allowed by the Convention for applying restrictions on foreigners’ employment is two years, the Committee requests the Government to provide practical information on the application of sections 67 of the Law on Aliens. Once again, it also requests the Government to provide information on the bilateral agreements regulating the issue of recognition of occupational qualifications acquired outside the country and on the measures taken to consult with the social partners during the negotiation of such agreements.

Application in practice. The Committee notes the extensive information gathered in the Bosnia and Herzegovina Migration Profile for the year 2020, including statistics, that refer to the evolution of the migration flows, the number of work and residence permits granted, data on irregular migration and measures adopted to address it. The Committee further notes that the Government reiterates its previous statement that, in practice, difficulties exist in implementing the Convention due to the sharing of competencies and responsibilities relating to the regulation of migration between the various horizontal and vertical levels of government. Noting that the Government does not provide a reply to its previous comment, it once again requests the Government to indicate whether consideration is being given to the adoption of measures for coordinating the regulation of migration, in order to ensure that it is uniformly applied throughout the country. With regard to the activities of the Coordination Body for Migration Issues in BiH, the Committee refers to its requests formulated under Convention No. 97.

Enforcement. Noting the lack of data available in the country, the Committee requests the Government to take measures to collect information on the activities of the labour inspectorate services and the court system, and to provide information on any relevant administrative or judicial decisions relating to the application of the Convention.