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Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Bosnia and Herzegovina (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.

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Article 1 of the Convention. Basic human rights of all migrant workers. The Committee recalls that article 2 of the Constitution of Bosnia and Herzegovina (BiH), article 2 of the Constitution of the Federation of BiH and article 44 of the Constitution of the Republika Srpska recognize fundamental freedoms and human rights for all persons within their territory. The Committee notes the Government’s indication that the rights and freedoms envisaged in the European Convention on Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina and that the Law on Movement and Stay of Aliens and Asylum, 2009, and the Law on the Prohibition of Discrimination created the conditions for the exercise of equal rights and opportunities for protection against discrimination on any basis for all citizens and all people who live and work in BiH. The Committee asks the Government to clarify whether the constitutional and legal provisions described above apply to both migrant workers in a regular and an irregular situation and to indicate specifically which basic human rights apply to them.

General conditions for granting temporary residence. The Committee notes that section 53(1)(c)of the Law on Movement and Stay of Aliens and Asylum, 2009 provides that temporary residence can be granted on the condition that the foreigner is in possession of a medical certificate showing that he or she does not suffer from a disease that represents a threat to public health. The Committee draws the Government’s attention to paragraphs 263 to 266 of the General Survey on migrant workers, 1999, that refer to the measures deemed reasonable to prevent migration from posing a threat to public health and establish the type of medical controls that can be requested in order to obtain a medical certificate. The Committee therefore requests the Government to indicate the content of the medical examination and the type of diseases that are considered to represent a threat to public health.

Articles 2 to 6. Measures to detect and address irregular migration. The Committee notes the extensive information provided by the Government with respect to the measures adopted regarding the establishment of mechanisms for the implementation and monitoring of migration flows, including the elaboration of the Migration Profile, 2011, as well as the Strategy in the Area of Migration and Asylum and the Action Plan for the Period 2012–15. The strategy contains, among others, mid-term strategic goals that refer to the improvement of the quality of the international and temporary protection (Asylum); contribution to the reduction of trafficking in persons and enhancement of the fight against irregular migration as well as the control and registration of foreigners including control of those foreigners that could be illegally employed in BiH. The Government further indicates that training activities on trafficking in persons have been carried out for judges and prosecutors in cooperation with the International Organization for Migration (IOM). The Committee also notes the ratification of the European Convention on Action against Trafficking in Human Beings which provides that parties shall cooperate with each other, for the purpose of preventing and combating trafficking in human beings; protecting and providing assistance to victims; and carrying out investigations or proceedings concerning criminal offences. The Committee further notes the amendment of the Criminal Code of BiH in 2010 introducing the criminal offence of “organizing groups or associations to carry out criminal acts of trafficking and smuggling of migrants” (section 189a). The law establishes penal sanctions for those responsible, including those who use the services of victims of trafficking. The Committee requests the Government to provide the following:

-full information on the measures taken under the Strategy in the Area of Migration and Asylum and the Action Plan for the Period 2012–15 to suppress clandestine movements of migrants for employment and the illegal employment of migrants, 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;
-statistical data and other information on the situation of irregular migrant workers in the country collected by the Ministry of Security;
-information on 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;
-information on 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. Please also provide information on 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 Brcko.

Article 7. Recalling that workers’ and employers’ organizations shall be consulted in regard to the issues covered by the Convention, the Committee requests the Government to take the necessary 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 according to section 52 of the Law on Movement and Stay of Aliens and Asylum, a temporary residence permit can be issued for a period not exceeding one year. Section 77 of the same law provides that work permits are issued for a specific post and for a specific type of job. According to section 85, within 15 days of termination of the work permit the temporary residence permit expires, if it had been granted on the basis of that work permit. The Government further indicates that if a foreigner loses the job, there are no longer grounds to justify the remaining period of the temporary stay and in this case his or her temporary residence may be cancelled. The Service for Foreigners will consequently proceed to inform the authority responsible for the employment of foreigners who makes the decision on suspension of the work permit. From the abovementioned provisions it appears that foreigners with a temporary residence permit who lose their employment may find their work permit suspended and residence permit cancelled. The Committee recalls that the practice of returning migrants at the end of a time-bound contract does not in itself constitute a violation of the Convention and that Article 8(1) refers to migrant workers who “lose” their employment, as opposed to those whose employment comes to an end as foreseen in the employment contract. In effect, Article 8(1) expressly requires that the loss of employment shall not in itself lead to the revocation of the work or residence permit. The Committee draws the Government’s attention to paragraphs 31 to 34 of the Migrant Workers Recommendation, 1975 (No. 151), according to which migrants who have lost their employment should be allowed sufficient time to find alternative employment and they should be guaranteed the right to legal redress should they lodge an appeal either claiming violation of benefits and compensation or against the issuance of an expulsion order (see General Survey, 1999, paragraph 614). The Committee requests the Government to provide information on the measures taken to ensure that migrant workers who have lost their employment are not regarded as in an irregular situation by the mere fact of the loss of their employment and to indicate how such workers enjoy equal treatment with nationals in the areas of security of employment, the provision of alternative employment, relief work and retraining, in accordance with Article 8(1) and (2) of the Convention. Please indicate whether migrant workers contesting the expulsion are permitted to remain in the country for the duration of the case.

Article 9(1) and (2). Equality of treatment in respect of rights arising out of past employment. The Committee notes that the Government reiterates that the rights of migrant workers arising out of past employment in terms of remuneration, social security and other benefits are recognized solely on condition that specific agreements on social security have been signed between BiH and the countries concerned. The Committee recalls that the principle of reciprocity does not apply in this context and highlights that according to Article 9(1) 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 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 requests the Government to 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. The Committee further requests the Government to 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 the Government indicates that in case of expulsion of foreigners, they will be required to pay the expenses. The Committee notes in this respect that section 96 of the Law on Movement and Stay of Aliens and Asylum provides that in the case of repatriation or placement of a foreigner under supervision before his or her removal from the country, a foreigner is obliged to pay his or her expenses and travel cost. The Committee underlines that according to Article 9(3) in case of expulsion of the worker or his or her family, “the cost shall not be borne by them”. The Committee draws the Government’s attention to paragraph 310 of the 1999 General Survey according to which a “clear distinction should be made between: (a) the case where the migrant worker is in an irregular situation for reasons which cannot be attributed to him or her (such as redundancy before the expected end of contract …), in which case the cost of his or her return as well as the return of family members, including transport costs, should not fall upon the migrant; and (b) the case where the migrant worker is in an irregular situation for reasons which can be attributed to him or her, in which case, only the 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 (see General Survey, op. cit., paragraph 311). The Committee requests the Government to take the necessary measures to amend section 96 of the Law on Movement and Stay of Aliens and Asylum so as to ensure that at least the costs arising out of placing a foreigner under supervision are not borne by the migrant worker. The Committee requests the Government to provide information on any development in this regard.

Article 10. Promotion of equality of opportunity and treatment. The Committee notes the Government’s general statement that the area of employment is not regulated at the State level. The Committee also notes that the Strategy in the Area of Migration and Asylum and the Action Plan for the Period 2012–15 sets out some mid-term strategic goals that could help in the designing of a policy on equality of opportunity and treatment for migrant workers, such as strengthening institutional capacities with the purpose of connecting migration and development; ensuring overall integration of foreigners; and establishment of a permanent coordination system in the realization of the migration policy. The Committee requests the Government to take the necessary steps to formulate and implement a policy on equality of opportunity and treatment in cooperation with workers’ and employers’ organizations. The Committee requests the Government to provide information on any developments in this regard and on the implementation of the Strategy in the Area of Migration and its contribution to the policy on equality of opportunity and treatment for migrant workers.

Article 12. Legislation. 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. Section 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 same conditions as citizens”. Section 5 of the Labour Law Federation of BiH prohibits discrimination against employees and job seekers on a number of different grounds, including colour, race, sex, language, religion, political or other opinion, national or social origin. The Committee further notes the adoption of the Law on the Prohibition of Discrimination, 2009, which provides for protection to all persons in BiH against discrimination on the basis of a series of grounds including national or social origin and belonging to a national minority (sections 1 and 2). Noting that section 5(e) of this Law provides for legal exceptions to the principle of equal treatment on the basis of different situations and in particular when “they are based on citizenship in a way prescribed by the law” the Committee requests the Government to provide information on the practical application of this provision to migrant workers. Please also provide information on any judicial or administrative decisions concerning cases of discrimination brought before the competent bodies by migrant workers, and their outcome.

Article 14. Restrictions on the employment of migrant workers. The Committee notes that section 77 of the Law on Movement and Stay of Aliens and Asylum provides that work permits shall be issued for a specific post and/or a specific type of job and for a period no longer than a year. Section 52(6) provides that the renewal of the temporary residence permit may be approved at the migrant worker’s request, but only on the same grounds on which he or she was initially granted temporary residency. The Council of Ministers determines the activities and professions which allow employment of foreigners and the number of work permits for each of these activities and sets the territorial distribution of work permits in line with the expressed needs of the entities. 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 77 to 79 of the Law on Movement and Stay of Aliens and Asylum. Please also 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.

Parts III and IV of the report form. The Committee requests the Government to provide information on the activities carried out by the labour inspectorate services as well as any relevant administrative or judicial decisions relating to the application of the Convention.

Part V. The Committee notes the extensive information gathered in the Bosnia and Herzegovina Migration Profile for the year 2011, including statistics, that refer to the evolution of the migration flows, permits and residence 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 owing to the sharing of competencies 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.the country.

the country.the country.

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The Committee notes the Government’s first report and the legislation attached thereto.

Article 1 of the Convention. Basic human rights of all migrant workers. The Committee notes that article 2 of the Constitution of Bosnia and Herzegovina recognizes human rights and fundamental freedoms in respect of “all persons within the territory”. Similarly, the Constitution of the Federation of BiH confers human rights and fundamental freedoms on “all persons within the territory of the Federation”. The Committee further notes that the Constitution of the Republika Srpska, in article 44, acknowledges that “aliens shall have the human rights and freedoms determined by the Constitution and other rights specified by law and international agreements”. While it appears that migrant workers enjoy human rights and fundamental freedoms on an equal footing with national workers, the Committee notes that it is not clear whether fundamental rights and freedoms are recognized in favour of both regular and irregular migrant workers. The Committee also notes that in practice refugees and displaced persons face serious discrimination. Recalling the Government’s obligation to recognize the basic human rights of all migrant workers, including irregular migrant workers, trafficked persons, refugees and displaced persons in so far as they are workers employed outside their home country, the Committee requests the Government to indicate how it is ensured in practice that all migrant workers enjoy basic human rights.

Articles 2 and 3. Detection, prevention and elimination of migration in abusive conditions. The Committee notes that in 2001, the Action Plan for Prevention of Human Trafficking was adopted with the objective of combating illegal immigration and human trafficking. The Committee notes from the Action Plan that Bosnia and Herzegovina has become in the past years a country of destination of hundreds of young women, mainly from the Republic of Moldova, Romania, Ukraine and the Russian Federation, who are trafficked for sexual exploitation. A component relating to the prevention of the trafficking of women was inserted in the Gender Action Plan of 2007. The Committee notes the Government’s indication that the labour inspection services are charged with the identification of the presence in the territory of illegally employed migrant workers, while the security authorities and the state border services are responsible for monitoring the entry, transit and exit of migrant workers. The Committee further notes that under the Action Plan for Prevention of Human Trafficking, specific training to fight illegal immigration and human trafficking should be provided by the Academic of the State Border Service to all its members. The Committee requests the Government to provide the following:

(i) full information on the measures taken under the Action Plan for Prevention of Human Trafficking: (a) to suppress clandestine movements of migrants for employment and illegal employment of migrants; and (b) against the organizers of illicit or clandestine movements of migrants for employment and against those who employ workers who have immigrated in illegal conditions, and on their impact. Please also supply information on the measures taken under the Gender Action Plan to combat trafficking of women and on their impact on preventing and eliminating this phenomenon;

(ii) information on the specific training and other awareness-raising measures directed at the bodies charged with monitoring migration flows with a view to enabling them to detect migration in abusive conditions and illegal employment of migrant workers;

(iii) statistical data and other information on the situation of illegal immigration in the country collected by the Ministry of Security; and

(iv) measures taken to seek the cooperation of employers’ and workers’ organizations in identifying migration in abusive conditions and illegal employment of migrant workers.

Article 4. Systematic contact and exchange of information. The Committee notes from the Government’s report under the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, that in 2006 Bosnia and Herzegovina entered into approximately 20 bilateral agreements on international cooperation of police and immigration services with a view to combating illegal immigration. It also took steps to sign 35 further agreements (CMW/C/BIH/1, paragraph 54). From the same sources, it emerges that a project to develop a communication system and exchange information on illegal migration in the West Balkans was implemented (ibid, paragraph 65). Moreover, the Committee notes that Bosnia and Herzegovina participates in international projects, such as “Ilareia” and “Hera”, aimed at strengthening police cooperation to address and combat trafficking in persons. The Committee further notes the Government’s indication that the exchange of information among countries is ensured through the network created by the World Association of the Employment Services. The Committee encourages the Government to continue its efforts to establish systematic contact and exchange of information with other states and requests it to provide information on the impact of the abovementioned, as well as any other initiatives taken in this regard.

Article 5. Prosecution of the authors of labour trafficking. The Committee notes the Government’s indication that the authors of forced labour trade are subject to criminal proceedings in accordance with the law of the country. The Committee requests the Government to specify whether the authors of labour trafficking can be prosecuted whatever the country from which they exercise their activities, and whether any arrangements on the national or international level have been made in this regard. Please indicate relevant legislative provisions, including on the sanctions to be imposed.

Article 6. Administrative, civil and penal sanctions. The Committee notes that section 12 of the Law on employment of foreign citizens and persons without the citizenship in Republika Srpska provides for penalties against the employer who hires a migrant worker without a work permit. Similarly, section 12 of the Law on employment of foreign citizens in the Brčko District and section 17 of the Law on employment of foreigners in the Federation of BiH provide for sanctions against the employer hiring migrant workers in breach of the law. The Committee also notes that the Action Plan for Prevention of Human Trafficking envisages the introduction of some amendments to the Law on Immigration and Asylum in Bosnia and Herzegovina so that it will provide for penalty provisions (ECRI, CRI (2005) 2, 25 June 2004, paragraph 49). The Committee requests the Government to provide complete information on the nature of the 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, including a copy of the relevant legislative provisions. Please also provide information on the application of the sanctions contemplated in the abovementioned laws regulating the employment of foreigners and on the status of the amendments to the Law on Immigration and Asylum in Bosnia and Herzegovina with respect to penalties.

Article 7. Consultations with social partners. The Committee notes from the Government’s report that no special consultations with social partners have been carried out. Recalling that workers’ and employers’ organizations shall be consulted in regard to the issues covered by the Convention, the Committee requests the Government to take the necessary measures to involve the social partners in the initiatives designed to detect, eliminate and prevent migration in abusive conditions and illegal employment of migrant workers.

Article 8. Non-return in the case of loss of employment. The Committee notes the Government’s indication that migrant workers legally residing in the country will not lose their residence or work permits, should this event occur, and will enjoy the same rights as national workers in respect of security of employment, the provision of alternative employment, relief work and retraining. The Committee also notes that in 2000 the Federation of BiH adopted the decision imposing the Law on Job Placement and Social Security of the Unemployed containing, in section 2, a non-discrimination clause. The Committee requests the Government to indicate the legislative provisions relevant to the application of Article 8 and specify whether these apply to both temporary and permanent migrant workers. The Committee also requests the Government to indicate whether the abovementioned decision also applies to migrant workers.

With regard to the Law on employment of foreigners in the Federation of BiH, the Committee notes that section 13 provides for the withdrawal of the work permit in the event that the migrant worker commits a crime, infringes on public order as well as “other cases provided by law”. The Committee requests the Government to clarify the meaning of “other cases provided by the law”.

Article 9. Equality of treatment in respect of rights arising out of past employment. The Committee notes from the Government’s report that illegally employed migrant workers can have the rights arising out of their past employment recognized solely on condition that specific agreements on social security have been signed between Bosnia and Herzegovina and their country of immigration. In this respect, the Committee refers the Government to paragraph 432 of the General Survey of 1999 on migrant workers spelling out that the principle of reciprocity does not apply in this context. The Committee further notes the Government’s statement that in case of dispute concerning their rights, migrant workers can have access to the competent bodies on an equal footing with national workers. As to the expenses related to the expulsion of the worker and his or her family, the Committee notes the Government’s indication that these costs are borne by the State. The Committee requests the Government to provide further information, including reference to relevant legislation, on the measures taken to ensure that irregular migrant workers enjoy equality of treatment with regularly admitted and lawfully employed migrants in the country in respect of the rights arising out of past employment, as regards remuneration, social security and other benefits. The Committee further requests the Government to provide information on any cases concerning breaches of equality of treatment brought before courts of law and the final decisions handed down, and to indicate whether migrant workers contesting the expulsion are permitted to remain in the country for the duration of the case. Please also indicate the provisions stipulating that the costs related to the expulsion of migrant workers and their family are to be borne by the State.

Articles 10 and 12. Promotion of equality of opportunity and treatment. The Committee notes the Government’s indication that there exists no specific policy designed to pursue this objective, but that the national legal framework guarantees that regular migrant workers enjoy equal opportunities and treatment with nationals. The Committee emphasizes that the existence of legislation prohibiting discrimination and providing reparations against infringements, is not sufficient to ensure equality of opportunity and treatment in practise. An active policy to secure acceptance and observance of this principle and to assist migrant workers and their families to make use of the equal opportunities offered to them is also needed. The Committee requests the Government to take the necessary steps to formulate and implement a policy on equality of opportunity and treatment in cooperation with workers’ and employers’ organizations. Please also provide information on any judicial or administrative decisions concerning cases of discrimination in respect of the abovementioned rights brought before the competent bodies by migrant workers on the basis of the relevant national legislation.

Article 11. Frontier workers. Noting that the legislation does not contain any definition of frontier workers, the Committee requests the Government to specify the meaning of “frontier worker” and to indicate which categories of migrant workers are not considered covered by the Convention.

Article 13. Family reunification. Noting the Government’s indication that no measures have been adopted to facilitate family reunification either on the national or international levels, the Committee encourages the Government to take such measures.

Article 14. Restriction of migrant workers’ employment. The Committee notes the Government’s indication that no restrictions apply to the free choice of employment of migrant workers, nor do any restrictions apply to their geographical mobility. It notes, however, that pursuant to sections 5 and 6 of the Law on employment of foreign citizens and persons without the citizenship in Republika Srpska, the work permit is issued to the employer and cannot be transferred to another employer. The Committee also notes the Government’s indication that migrant workers’ access to certain categories of jobs in the state institutions and in the administrative departments is restricted. The Committee further notes that the issue of recognition of occupational qualifications acquired outside the country is regulated through bilateral agreements and is subject to local provisions. Recalling that the maximum period allowed by the Convention for the application of restrictions on foreigners’ employment is two years, the Committee requests the Government to provide practical information on the application of sections 5 and 6 of the Law on employment of foreign citizens and persons without the citizenship in Republika Srpska. The Committee also requests the Government to indicate the categories of employment or functions in the state institutions and administrative departments to which access is restricted for migrant workers. Please also 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 their negotiation.

Part III of the report form. The Committee notes from the Government’s report that the Ministry of Security of Bosnia and Herzegovina, the ministries in charge of employment at the level of the entities and the department of Brčko district, as well as the Ministries of Interior of the Entities, the police of Brčko district and the employment and labour inspectorate services are all responsible for the application of the legislation and regulations relevant to the implementation of the Convention. The Committee requests the Government to provide information on the monitoring activities, especially those carried out by the labour inspectorate services relating to the application of the Convention, including details on their findings, and on any other initiatives taken by the abovementioned bodies with a view to promoting the application of the Convention.

Part IV. The Committee notes that no information concerning any decisions delivered by national courts is available. The Committee encourages the Government to gather and submit information on any relevant decisions involving issues relating to the application of the Convention handed down by national courts or other competent administrative bodies.

Part V. The Committee notes the Government’s statement that in practice there are difficulties 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 specify the nature of these difficulties and to provide information on the measures taken or envisaged to address them. It also encourages the Government to take the necessary steps to coordinate the regulation of migration and ensure that it is uniformly and coherently applied throughout the country. Noting that a similar attempt is envisaged under the Action Plan of Prevention of Human Trafficking, the Committee requests the Government to provide information on the progress achieved in this context.