1. 1 Analysis of legislation and legal frameworks of external labour migration in the Kyrgyz Republic Asel Jamankulova ILO National Project Expert ILO National Project Expert

2. 2 This study has been prepared within the framework of the ILO Project “Regulating Labour Migration as an Instrument of Regional Cooperation and Development in Central Asia”.

3. 3 Objectives of the study: Review legislation and enforcement practices regarding labour migration; Review legislation and enforcement practices regarding labour migration; Look at the level of consistency of the migration legislation between Kyrgyzstan and other countries of the region, particularly with Russia and Kazakhstan. Look at the level of consistency of the migration legislation between Kyrgyzstan and other countries of the region, particularly with Russia and Kazakhstan.

4. 4 Objectives of the study: Give an assessment of the ratification status and of the de-facto incorporation of relevant international standards into the national legislation and eenforcement practices, ; Give an assessment of the ratification status and of the de-facto incorporation of relevant international standards into the national legislation and eenforcement practices, ; Develop recommendations have been developed on introducing changes and amendments to existing legislation of the KR. Develop recommendations have been developed on introducing changes and amendments to existing legislation of the KR.

5. 5 National context and the significance of labour migration

6. 6 Russia and Kazakhstan are the major consumers of work force from Kyrgyzstan, Tajikistan, and Uzbekistan. Labor migration is an integral part of global processes. Effective governance of the migration process requires integration and coordination of the efforts of the state and civil society. Effective governance of the migration process requires integration and coordination of the efforts of the state and civil society.

7. 7 Kyrgyzstan: Rural population – 65% Rural population – 65% Urban population - 35% Urban population - 35% Children - 34% Children - 34% Employable age – 57% Employable age – 57% Retired age – 9% Retired age – 9%

8. 8 National Statistics Committee data for 2008: 5,224 mln. people – of which: 5,224 mln. people – of which: 2,0 mln. people – poor; 2,0 mln. people – poor; more than 20 thousand are in extreme poverty living on less than 1USD a day; more than 20 thousand are in extreme poverty living on less than 1USD a day; An average monthly nominal wage of one worker equals to about $100; An average monthly nominal wage of one worker equals to about $100; GDP per capita was 26,700 KGS, or 774.02 USD. GDP per capita was 26,700 KGS, or 774.02 USD.

9. 9 In Russia and Kazakhstan 350,000 citizens of Kyrgyzstan; 350,000 citizens of Kyrgyzstan; At employable age (62%); At employable age (62%); with higher education - 22% with higher education - 22% with secondary education– 38%; with secondary education– 38%; according to existing data during the last 5 years some 100,000 citizens of Kyrgyzstan obtained citizenship of Russia. according to existing data during the last 5 years some 100,000 citizens of Kyrgyzstan obtained citizenship of Russia.

10. 10 over the period of 1990-2005 according to official data: Total volume of migration outflow- 516,000 people; Total volume of migration outflow- 516,000 people; international migration - 219,000 persons, or 4.3% of the total population of the country; international migration - 219,000 persons, or 4.3% of the total population of the country; migration reached 994,000 people, of them 52% or 517,400 left the country for permanent residence. migration reached 994,000 people, of them 52% or 517,400 left the country for permanent residence.

11. 11 Among international migrant workers economically active citizens prevail (42% are at the age of 16-34)

12. 12 Effective governance of the migration process leads to gradual leveling of socio-economic situation in the origin and destination countries

13. 13 Situation of labour migrants in receiving countries is accounted for shortcoming of regulatory mechanisms of labor migration: 1. Shortcomings of the institute of registration at the place of residence and receiving work permits;

14. 14 2. Principle of inequality of treatment, contained in tax legislation in respect of labour migrants (for example, 30% income tax for non-residents living in RF) ; lack of mechanisms of social fund deductions for labour migrants and all temporary workers in Kazakhstan)

15. 15 Aggravating circumsatnces for labor migrants are: 3. An acute shortage of information and of formal employment channels for labour migrants are some of the aggravating circumstances, which force most of migrants use the informal channels for employment and remain in the illegal residence situations, which account for non-compliance with labour, taxation and migration legislation. 3. An acute shortage of information and of formal employment channels for labour migrants are some of the aggravating circumstances, which force most of migrants use the informal channels for employment and remain in the illegal residence situations, which account for non-compliance with labour, taxation and migration legislation.

16. 16 The irregular situation of migrants causes serious challenges for the receiving countries: The irregular situation of migrants causes serious challenges for the receiving countries: the growth of the criminalization and social tension in society; the growth of the criminalization and social tension in society; corruption, exploitation and slavery labour, robbery, assaults, battery; corruption, exploitation and slavery labour, robbery, assaults, battery; threats to economic security of the country, health security of the population. threats to economic security of the country, health security of the population.

17. 17 Violation and disregard of international obligations to provide for the equality of treatment lead to the situation where Kyrgyz citizens have little choice but acquire Russian and Kazakh citizenship in mass.

18. 18 Solution of many problems in the sphere of labour migration depends on coordinated actions of CA states and the RF.

19. 19 Summary review of existing relevant legislation

20. 20 legal regulation in the sphere of external labour migration processes: laws “On external labour migration”; “On external labour migration”; “On internal migration” ; “On internal migration” ; “On refugees”; “On refugees”; “On external labour migration”; “On external labour migration”; “On prevention of and combating against human trafficking”. “On prevention of and combating against human trafficking”.

21. 21 Law “On external labour migration” of 13 January, 2006 defines external labour migration as a voluntary exit of the citizens of KR from the country on a legal basis, as well as entry of foreign citizens and stateless persons to the territory of the KR with a purpose of remunerated labour activity. defines external labour migration as a voluntary exit of the citizens of KR from the country on a legal basis, as well as entry of foreign citizens and stateless persons to the territory of the KR with a purpose of remunerated labour activity.

22. 22 State policy of the KR is aimed at reaching the following goals: Regulating external labour migration processes; Regulating external labour migration processes; Meeting a demand for labour in the labour market of the KR, forming its rational and balanced structure in order to raise the efficiency of the economy; Meeting a demand for labour in the labour market of the KR, forming its rational and balanced structure in order to raise the efficiency of the economy; Ensuring priority rights of citizens of the KR to fill up vacancies in the national labour marker; Ensuring priority rights of citizens of the KR to fill up vacancies in the national labour marker;

23. 23 State policy of the KR is aimed at reaching the following goals: Preventing and elimination of irregular labour migration; Preventing and elimination of irregular labour migration; Ensuring legal and social protection of migrant workers; Ensuring legal and social protection of migrant workers; Facilitating the establishment of relevant quotof other countries for the recruitment and job placement of citizens of the KR abroad; Facilitating the establishment of relevant quotof other countries for the recruitment and job placement of citizens of the KR abroad;

24. 24 State policy of the KR is aimed at reaching the following goals: Protecting rights and interests of the citizens of the KR in acceding international acts in the sphere of labour migration; Protecting rights and interests of the citizens of the KR in acceding international acts in the sphere of labour migration; Forming a data base on vacancies in the labour market, possibility of arranging labour activity of citizens of the KR abroad and continuous awareness raising of the population of the KR through government network of mass media. Forming a data base on vacancies in the labour market, possibility of arranging labour activity of citizens of the KR abroad and continuous awareness raising of the population of the KR through government network of mass media.

25. 25 Government policy of the KR in the sphere of external labour migration is based on the following principles: Commitment to conventional standards of international law in the sphere of human rights and social security of migrant workers; Commitment to conventional standards of international law in the sphere of human rights and social security of migrant workers; Following national concerns in the course of development and implementation of activities in the sphere of external labour migration. Following national concerns in the course of development and implementation of activities in the sphere of external labour migration.

26. 26 State of ratification and incorporation of international norms

27. 27 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990). ILO Conventions ratified by the KR – total 10; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990). ILO Conventions ratified by the KR – total 10; including Convention on Migration for Employment (№97, 8.06.1949) and Equality Treatment (Social Security) (№118, 6.06.1962); including Convention on Migration for Employment (№97, 8.06.1949) and Equality Treatment (Social Security) (№118, 6.06.1962);

28. 28 Maintenance of Social Security Rights Convention (№157, 02.06.1982); Maintenance of Social Security Rights Convention (№157, 02.06.1982); 8 fundamental, 4 priority ILO Conventions, and also 8 fundamental, 4 priority ILO Conventions, and also ILO Conventions, recognized by the KR as a successor of the former USSR – total 43. ILO Conventions, recognized by the KR as a successor of the former USSR – total 43. Total ratified by the Kyrgyz Republic 53 ILO Conventions Total ratified by the Kyrgyz Republic 53 ILO Conventions

29. 29 Centerpiece in the system of international instruments for the protection of human rights and freedoms : Universal Declaration of Human Rights of December 10, 1948, articles 13 and 14 which determine that “Everyone has the right to freedom of movement and residence within the border of each State”

30. 30 International Covenant on Civil and Political Rights of December 16, 1966 (ratified by the KR on January 12, 1994) :“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

31. 31 Implementation: Principle of non-discrimination is in article 13 of the Constitution of the KR that states “No one undergoes violation of freedom and rights on the basis of origin, sex, race, nationality, language, religion, political and religious belief or any other circumstances of personal or public character Principle of non-discrimination is in article 13 of the Constitution of the KR that states “No one undergoes violation of freedom and rights on the basis of origin, sex, race, nationality, language, religion, political and religious belief or any other circumstances of personal or public character.

32. 32 A fundamental convention in the sphere of labour migration is International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990).

33. 33 ILO declaration on fundamental principles and rights in the field of labour: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation

34. 34 Fundamental, principles and rights at work refer to all men and women workers, including migrant workers both in regular and irregular situations. Fundamental, principles and rights at work refer to all men and women workers, including migrant workers both in regular and irregular situations.

35. 35 Pursuant to Convention, protection of migrants’ rights is ensured through exercising their: Pursuant to Convention, protection of migrants’ rights is ensured through exercising their: Right to remuneration Right to remuneration Right to occupational safety Right to occupational safety Right to association and collective bargaining Right to association and collective bargaining Right to Abolition of forced labour ; to Prohibition of child labour, that is, children- migrants Right to Abolition of forced labour ; to Prohibition of child labour, that is, children- migrants

36. 36 Definition of the term “labor migrant with regular status” (article 11, ILO Convention 97 and 143): “migrant for employment” means a person who migrates from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment. “migrant for employment” means a person who migrates from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment.

37. 37 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) The term "migrant worker" refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national. The term "migrant worker" refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.

38. 38 The term "self-employed worker" refers to a migrant worker who is engaged in a remunerated activity otherwise than under a contract of employment and who earns his or her living through this activity normally working alone or together with members of his or her family, and to any other migrant worker recognized as self- employed by applicable legislation of the State of employment or bilateral or multilateral agreements. The term "self-employed worker" refers to a migrant worker who is engaged in a remunerated activity otherwise than under a contract of employment and who earns his or her living through this activity normally working alone or together with members of his or her family, and to any other migrant worker recognized as self- employed by applicable legislation of the State of employment or bilateral or multilateral agreements.

39. 39 Migration process and the role of social partners Stages of migration: Planning and preparation Planning and preparation Transit Transit Arrival and intake Arrival and intake Integration Integration Returning and re-integration Returning and re-integration

40. 40 Principle of equality is set in the Law of the KR “On External labour migration” of January 13, 2006 in accordance with Migration for Employment Convention (1949) – recognition of equality for migrant workers in respect of nationality, race, religion or sex.

41. 41 Principle of Freedom of association and collective bargaining is set in the Law of the Kyrgyz Republic of October 16, 1998 #130 “On Trade Unions”. In accordance with Association and Protection of the Right to Organize Convention № 87 (1948) and ILO Convention 98 Right to Organise and Collective Bargaining Convention, 1949

42. 42 with a view of promotion and protection of their rights and concerns; with a view of promotion and protection of their rights and concerns; trade unions are independent in their activity and abide only by the legislation of the KR. ; trade unions are independent in their activity and abide only by the legislation of the KR. ; every citizen aged 14 and engaged in remunerated activity have the right to establish trade unions of their choice on a voluntary basis, as well as join trade unions provided that charters of unions are complied; every citizen aged 14 and engaged in remunerated activity have the right to establish trade unions of their choice on a voluntary basis, as well as join trade unions provided that charters of unions are complied;

43. 43 Abolition of forced labour is set in the article 28 of the Constitution of the KR and other normative legal acts pursuant to Convention 105 on Forced Labour (1930) Convention 105 on Abolition of Forced Labour 1957.

44. 44 Prohibition of child labour is set in the law of the KR “On protection of the rights of the underage” in 1999 Minimum Age Convention, 1973 ratified by Kyrgyzstan in 1992 Prohibition of child labour is set in the law of the KR “On protection of the rights of the underage” in 1999 pursuant to Minimum Age Convention, 1973 ratified by Kyrgyzstan in 1992

45. 45 Prohibition of child labour has also been implemented with the help of с помощью State programme of social partners actions on liquidation of the worst forms of child labour in the KR for 2008-2011 ratified by Kyrgyzstan in 2004 году. Prohibition of child labour has also been implemented with the help of с помощью State programme of social partners actions on liquidation of the worst forms of child labour in the KR for 2008-2011 in pursuant to ILO Convention 182 ratified by Kyrgyzstan in 2004 году.

46. 46 Provision for migration policies in regional integration treaties and protocols

47. 47 At the regional level, Kyrgyzstan is a participant of a number of multilateral agreements within CIS and EurAsEC on labour migration See Annex 2

48. 48 Within CIS the Agreement on cooperation in the sphere of labour migration and social security of migrant workers (1994) and the Agreement on cooperation of CIS member-states in the fight against illegal migration (1998) are in force

49. 49 CIS Convention in 2008 Convention on legal status of migrant workers and members of their families of CIS participant countries has been passed in 2008 Convention on legal status of migrant workers and members of their families of CIS participant countries has been passed In 2009 this Convention was ratified by Kazakhstan (31.12.09), Kyrgyzstan (31.11.09), Belarus (05.06.09) In 2009 this Convention was ratified by Kazakhstan (31.12.09), Kyrgyzstan (31.11.09), Belarus (05.06.09)

50. 50 signed bilateral and tripartite agreements on issues of labour migration with: Russian Federation Russian Federation Azerbaijan, Azerbaijan, Belarus, Belarus, Tajikistan, Tajikistan, Uzbekistan, Uzbekistan, South Korea. South Korea.

51. 51 Specific gaps in existing legislation in relation to international standards and regional commitments

52. 52 Protocol on introducing changes and additions to the Agreement between the Government of the KR and the Government of the RF on labour activity and social security of migrant workers of March 28, 1996 do not function because of internal legislation of the RF

53. 53 Agreement of governments of CIS member states of April 15, 1994. “On cooperation the sphere of labour migration and social security of migrant workers” (1994) does not address issues related to direct provision of any type of social security of migrant workers.

54. 54 Agreement of CIS states of March 13, 1992 “On guarantees of citizens of CIS participant countries in the sphere of pension provision Agreement of CIS states of March 13, 1992 “On guarantees of citizens of CIS participant countries in the sphere of pension provision does not ensure mechanisms of implementing this regulation does not ensure mechanisms of implementing this regulation

55. 55 The key element in determining and regulating new social labour relations within CIS and EurAsEC should be labour legislation foreseeing compliance of unified principles on the basis of international standards

56. 56 Migrant workers in Kazakhstan and Russia do not have the right of access to pension system and mandatory social insurance that does not fit to International standards set by the UN International conventions of 1990 and ILO Conventions 118, 143, 157.

57. 57 The Government of the KR and social partners face serious objective – jointly with governments and social partners of receiving countries to develop mechanisms implementing rights to social benefits of our labor migrants abroad.

58. 58 It is necessary to coordinate the activity of state institutions and social partners in resolving the following issues: Strengthening tripartite social dialogue for carrying out an effective implementation of the state policy in regards of labor migrants; Participation of tripartite partners in the process of improving legislation in regards of labor migrants

59. 59 It is necessary to coordinate the activity of state institutions and social partners in resolving the following issues (continuation): assisting associations of labour migrants abroad; assisting associations of labour migrants abroad; providing compatriots and labour migrants with information; providing compatriots and labour migrants with information; research of regulations of compatriots and labour migrants research of regulations of compatriots and labour migrants ; protecting of rights and freedom of compatriots and labour migration Increasing organizational capacity with the aim of protecting of rights and freedom of compatriots and labour migration development of educational, cultural and academic links and contacts with fellow country men; development of educational, cultural and academic links and contacts with fellow country men; works of socio-economic character and improving mechanisms of financial support with compatriots and labour migrants; works of socio-economic character and improving mechanisms of financial support with compatriots and labour migrants; providing an urgent humanitarian and other needed assistance to compatriots and labour migrants, improving mechanisms of such assistance. providing an urgent humanitarian and other needed assistance to compatriots and labour migrants, improving mechanisms of such assistance.

60. 60 Recommendations for legislative adjustments and future regional policy priorities

61. 61 a significant number of agreements is not executed for the lack of effective oversight over their execution

62. 62 Effective mechanism of implementation of conventions, agreements and covenants require institutionalized cooperation of tripartite partners Effective mechanism of implementation of conventions, agreements and covenants require institutionalized cooperation of tripartite partners Tripartite committees can and must be on a regular basis, provide analysis of situation, develop measures on implementin recommendations, jointly develop proposals, participate in discussion of new draft laws, amendments etc. Tripartite committees can and must be on a regular basis, provide analysis of situation, develop measures on implementin recommendations, jointly develop proposals, participate in discussion of new draft laws, amendments etc. Tripartite Consultation (International Labour Standards) Convention 144 Tripartite Consultation (International Labour Standards) Convention 144

63. 63 There are gaps related to methods of preparation of legal instruments: a significant number of agreements regulating socio-economic issues are of declarative nature; a significant number of agreements regulating socio-economic issues are of declarative nature; lack clauses on funding of the adopted measures; lack clauses on funding of the adopted measures; national administrative bodies are not identified; national administrative bodies are not identified; interstate oversight is not foreseen; interstate oversight is not foreseen; Denunciation or cancellation of the obsolete or superseded Agreements and Decrees are not foreseen. Denunciation or cancellation of the obsolete or superseded Agreements and Decrees are not foreseen.

64. 64 To introduce the following issues to the discussion of the tripartite partners : To introduce the following issues to the discussion of the tripartite partners : 1) ratification of ILO Convention 143 on Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, ILO Convention 181 of 1997 on Private Employment Agencies 1) ratification of ILO Convention 143 on Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, ILO Convention 181 of 1997 on Private Employment Agencies

65. 65 2) Introducing amendments to normative legal acts: 2) Introducing amendments to normative legal acts: 2.1 The Law of the Kyrgyz Republic “On citizenship” 2.2. Regulations on procedures of reviewing the KR citizenship issues - in respect of dual citizenship, introducing relevant changes related to simplified procedures of obtaining citizenship to returning ethnic Kyrgyzes.

66. 66 It is necessary to introduce changes to the normative-legal acts, which regulate procedures of obtaining a status of immigrant, permission for labour activity, providing quota for foreign labour migrants and compatriots returning to Kyrgyzstan. 2.3 It is necessary to introduce changes to the normative-legal acts, which regulate procedures of obtaining a status of immigrant, permission for labour activity, providing quota for foreign labour migrants and compatriots returning to Kyrgyzstan. There is a need for introducing legislative clarification to the status of stateless persons, ethnic Kyrgyzes 2.4 There is a need for introducing legislative clarification to the status of stateless persons, ethnic Kyrgyzes.

67. 67 Thank you for attention!!!