CMNT_TITLE

Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Albania (RATIFICATION: 2006)

Other comments on C143

Observation

Direct Request

2023
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Article 1 of the Convention. Basic human rights. The Committee notes the adoption of the National Action Plan for the Fight Against Human Beings Trafficking 2021-2023 (NAPFAHBT – 2021–23). The Committee also notes that the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW), while commending the efforts of the Government to combat human trafficking, has expressed deep concerns over the facts that the country remained a source, transit and destination country for victims of trafficking, including women and children subjected to sex trafficking and forced labour, and that many migrant workers in an irregular situation face severe conditions throughout their journey in Albania (CMW/C/ALB/CO/2, 8 May 2019, paragraphs. 69 and 71). The Committee requests the Government to provide information on the implementation and the results of the National Action Plan for the Fight Against Human Beings Trafficking 2021-2023. More generally, the Committee requests the Government to provide information on the measures taken to examine the enjoyment in law and in practice of basic human rights of both Albanian emigrants and foreign immigrant workers, including those in irregular situation.

Articles 2 and 3. Measures to detect and suppress migration in abusive conditions and illegal employment. The Committee takes note of the Government’s indication that the Ministry of Internal Affairs, with the support of the Border and Migration Department, conducts regular assessments and analyses of migration phenomena. The Government also indicates that it cooperates closely with international organizations, such as the International Organization for Migration (IOM), the United Nations High Commissioner for Refugees (UNHCR), and relevant European entities, including the Organization for Security and Co-operation in Europe (OSCE), the European Border and Coast Guard Agency (Frontex) and the European Union delegation in Tirana. These collaborations cover all migration issues, including prevention campaigns, the promotion of voluntary returns, and the reintegration of returnees. The Government also indicates that: (1) it collaborates with neighbouring countries and the members States of the European Union to exchange information on migration; (2) the control of border crossing has been strengthened, and refers in this regard to the adoption by the Minister of Internal Affairs of the Instruction No. 640 to determine the special rules for the border crossing of Albanian minor citizens, and the Order No. 641 to strengthen the control of Albanian citizens at the exit of the state border who do not meet the travel conditions for entry and stay in the countries of the European Union and the Schengen area. Furthermore, the Committee takes note of the National Strategy for Migration (NSM) 2019–22 which includes a series of measures to prevent irregular migration, such as increased migration controls, and the promotion of quality jobs and skills opportunities for Albanian citizens. The NSM 2019–22 also includes information on the number of Albanians who were denied permission to travel to the Schengen area (12,403 in 2017), as well as on the number of undocumented foreign migrants apprehended in Albania (1,049 in 2017 and 3,088 in the first half of 2018). The Committee also notes that according to the NSM 2019–22, it remained important to review the position of foreign workers with regard to the implementation of the Labour Code and that one of the actions to be taken in the context of the strategy would be establishing a central unit at the Labour Inspectorate for the detection and investigation of violations against foreign workers. While taking note of the information provided, the Committee requests the Government to specify whether a new National Strategy on Migration has been approved. It also requests the Government to provide information on: (i) the measures adopted and the results achieved through the implementation of the National Strategy on Migration 2019-2022 to detect and suppress migration in abusive conditions; and (ii) whether a central unit of the Labour Inspectorate was established for the detection and investigation of violations against foreign workers and, if so, information on the activities of this unit.

Articles 5 and 6. Sanctions. The Committee takes note of the Government’s indication that Section 134 of the Law on Foreigners No. 79/2021 (replacing the Law on Foreigners No. 108/2013) requires employers to: (1) request a copy of the resident permit or similar authorization prior to recruitment, (2) inform the authorities when employing a foreign national; (3) cover the costs of return for any foreign national illegally employed by them; and (4) pay any outstanding taxes or social contribution, including the respective administrative penalties applicable to the said foreign national, where return procedures apply. It further notes that, additional sanctions against employers engaged in the illegal employment of foreigners may include : exclusion from the right to public benefits, aid or funds, as well as from public procurement contracts, for a period of up to five years (section 134 (4)(a) and (b)); temporary or permanent closure (section 134 (4)(c)); and the imposition of a fine of 350,000 to 400,000 Albanian lek (ALL) (section 141 (1)(ll)). Noting that its report does not include information in this regard, the Committee requests the Government to provide detailed information on: (i) the sanctions imposed against perpetrators engaged in the organization of unlawful movement of migrants for employment, including sanctions imposed to persons engaging in human trafficking , including information on the number and nature of the sanctions imposed in practice; (ii) the activities of the labour inspectorate to prevent and sanction abusive employment conditions of foreigners; and (iii) the imposition of the sanctions established by the Law on Foreigners in practice, including information on the number and nature of the sanctions imposed.

Article 9(1) and (2). Equality of treatment of migrants in an irregular situation. Further to its previous comments, the Committee notes that Section 134 of the Law on Foreigners No. 79/2021 includes provisions comparable to those included in the now repealed Law on Foreigners No. 108/2013, i.e. requiring that the employer pay the arrears for the work performed and the taxes and social contributions of the foreigner (section 134(1)(d)(h) and(e)), in the case of the unlawful employment of foreigners. The Committee requests the Government to provide information on the measures taken to ensure that, in practice, migrant workers in an irregular situation can claim their rights regarding remuneration, social security and other benefits, and have access to courts to do so. It also requests the Government to indicate whether migrant workers in an irregular situation contesting their expulsion are permitted to remain in the country for the duration of the proceedings.

Article 9(3). Costs of expulsion. The Committee notes that the Law on Foreigners No. 79/2021 includes provisions similar to those included in the former Law on Foreigners No. 108/2013 regarding costs of return. The Law requires that: (1) employers cover the costs of return for any alien who has been illegally employed by them (section 134 (1)(d)); (2) removal and expulsion costs (stay at the detention centre and other costs incurred) shall be paid by the foreigner (section 122); and (3) only if a foreigner stays illegally in the country and lacks sufficient funds to return, his/her host or the organizer of his/her transport shall cover the cost of return (section 136 (3)). The Committee recalls that Article 9(3) of the Convention provides that “in case of expulsion of the worker or his family, the cost shall not be borne by them”. It is thus not in conformity with the Convention to recover from the migrant worker the ‘costs of expulsion’, i.e. the costs incurred by a State in ensuring that the worker in an irregular situation leaves the country (for example, the costs of the administrative or legal proceedings involved in issuing an expulsion order or in implementing the order and escorting the worker from the country). All the other costs incurred fall upon the migrant in an irregular situation (General Survey on Promoting Fair Migration, 2016, paragraph 320). The Committee requests the Government to take adequate steps to ensure that, even where the migrant worker is in an irregular situation for reasons which can be attributed to him or her, the costs of expulsion (as described above) may not fall upon the migrant.

Article 16(1)–(3). Part II of the Convention. The Committee requests again theGovernment to provide information on the reasons for which it has not yet included Part II in its acceptance of the Convention.