CITIZENS` LABOUR RIGHTS PROTECTION LEAGUE

SITUATION WITH PROVISION OF THE RIGHTS OF MIGRANT WORKERS AND THEIR FAMILY MEMBERS IN AZERBAIJAN

LEGISLATION AND PRACTICE

REPORT ON OUTCOMES OF THE MONITORING

BAKU-2009

General editing and compilation: Sahib Mammadov

Monitoring conducted by professional staff Sahib Mammadov Alimammad Nuriyev Irada Javadova Hamid Xalilov

This publication was supported by a grant from the OSI Assistance Foundation

The Monitoring report has been prepared and published within the “Support to provision of human rights of migrant workers” project implemented by Citizens’ Labur Rights Protection League with financial assistance of Open Society Institute – Assistance Foundation (Central Eurasia Project) Citizens’ Labour Rights Protection League

Address: 87/9, Rasul Rza str, AZ1014, Baku, Tel.: (+99412) 495 85 54; (994 50) 314 49 15 E-mail: [email protected]; [email protected]

© CLRPL © OSI-AF

2

CONTENT

Summary Introduction

Analysis of the legislation

Nonstructured interview with migrant workers

Analysis of statistics regarding migrant workers

Conduction of survey

Final outcomes and recommendations regarding the monitoring

Annexes

3

SUMMARY

The monitoring conducted within Notwithstanding the fact that there the “Support to provision of human are many international documents rights of migrant workers” project imposing obligations on states for implemented by Citizens’ Labur protection of all rights, including Rights Protection League with social rights of migrant workers and financial assistance of Open Society their family members in the Institute – Assistance Foundation destination country, the rights of (Central Eurasia Project) is aimed to persons within this category are determine the situation with provision most of all violated. The of the human rights of foreigners and introduction part of the report also stateless persons working in include information about main Azerbaijan and their family members, rights of the migrant workers and and to prepare recommendations on international standards regarding elimination of gaps in the legislation their situation in the destination and shortcomings in the practice country. revealed as a result of monitoring. At The following section of the the same time, depending on the report is dedicated to the analysis of outcomes of the Monitoring the legislation. Within the analysis determination of the strategy for the legislation is compared with subsequent actions and international norms to with the implementation of the appropriate Republic of Azerbaijan is party and actions in compliance with the these norms are listed. When the strategy was taken into account. national legislation is analysed the The presented report, prepared principles and standards reflected in based on the particular methodology the International Convention on the and with application of various Protection of the Rights of All monitoring tools, mainly covers the Migrant Workers and Members of following issues: Their Families adopted in 1990 The introductory part of the under the aegis of UN and later report provides information about ratified by the States are considered general problems related to the basic. Within the analysis the legal migrant workers in the world, opportunities for migrant workers efforts of international organizations for their labour activity in the to eliminate these problems, country provided on the level of including information about the legislation and subordinate legal adopted international documents. norms, problems arising during 4 application of these norms and structures of the Ministry of Foreign causes of these problems have been Affairs (embassies, consulates, etc.). analyzed. In accordance with the migrant workers enetring the Constitution International country with common entry visa agreements wherein the Azerbaijan may not legalise their labour Republic is one of the parties activity and have to face numerous constitute an integral part of bureaucratic obstacles. legislative system of the Azerbaijan Republic and provisions of Shortcomings in legislation, international agreements shall serious violations in the practice dominate, except Constitution and caused the situation where majority acts accepted by way of (more than 90%) of aliens and referendum. It means that, stateless persons working in the whenever there is disagreement country are in illegal situation. between normative-legal acts in While analysing the legislation legislative system of the Azerbaijan the main provisions hindering from Republic and international conduction of labour activity were agreements wherein the Azerbaijan shown and the appropriate Republic is one of the parties, recommendations have been provisions of international prepared for their elimination. agreements shall dominate. Several tools have been used It was determined that in many during the monitoring for cases both appropriate legislative determining the problems existing acts particularly Laws of the in practice. These tools are Republic of Azerbaijan on “The Nonstructured interview with Law Legal Status of aliens and migrant workers, Analysis of stateless persons”, “The Law Exit, statistics regarding migrant Entry and Pasports”, “The Law workers, Conduction of survey. on immigration”, “The Law on The opinion regarding Labour migration” and other nonstructured interview with normative legal acts adopted with migrant workers has been provided the purpose of implementation of in the monitoring report. The main these laws disagree with appropriate purpose of interviews has been to international norms to which the learn the typical problems or country is party, and thus human migrant workers and their family rights or migrant workers are members. Migrant workers have violated. been divided into several categories Migrant workers entering and interviews with them played a country with the purpose of labour serious role in obtaining clear activity may not obtain labour visa. picture of their problems. The main reason is existence of When analysing statistics shortcomings in the visa system. related to migrant workers it was Thus, labour visa is not issued in the revealed that both official and

5 unofficial statistics do not reflect the country. The second part was real quantitative indicators of related to the real situation of migrant workers. Thus, till January migrant workers and their family 1, 2008, 1700 migrant workers from members and situation with 65 countries of the world have been provision of human rights. registered, at the end of the year this According to the opinion of number became 4200. In fact, the experts participating in the survey, main reason of increase of the impact of migrant workers on registered migrant workers during the labour market of the country is the year in comparison with not felt very much at the present previous years is not increase of stage. But the opinion of the inflow of migrant workers. This is majority of experts is that there are related to the high fines for both legal and practical problems employers who employ aliens and for legal activity of migrant workers stateless persons without personal in the country. permit. According to the unofficial At the end of the report, Final statistics, number of illegal migrant outcomes and recommendations workers already exceeded 40 000. regarding the monitoring have But this is also not real statistics. been provided. The According to the certain sources, recommendations are directed both only the number of ethnic to the improvement of the Azerbaijani’s coming for labour legislation and elimination of activity to Azerbaijan from Georgia shortcomings in practice. The is more than 100 000. Thus, there is following conclusions have been no exact statistics of migrant made as a result of the monitoring. workers in the country. And this, on its turn creates serious problems at • The legislation is not the labour market of the country. perfect; Survey has been conducted • Visa system has among experts. shortcomings; The main purpose of the survey • The procedures for was to learn about the impact of obtaining permission for legal migrant workers on labour market labour activity are complicated; and the economy of the country and • Informal sector comprises the real situation of migrant workers more than 50% of the country’s in the Republic of Azerbaijan. From labour market. And this creates this point of view, survey consisted conditions for migrants workers of two parts. The first part was to be majority in the informal related to the legal situation of sector. migrant workers and their impact on labour market and the economy of

6

INTRODUCTION

In many cases they do not know People do not in mass leave salary system, living standards of their home country only in cases of the host country and as a result the wars, pursuit or natural disaster. salary that seems relatively high There are other situations forcing does not meet their needs in the people to leave their home country country they moved to. for a relatively long period of time. They do not know the laws of The most wide spread leaving the the country and thus do not know home country with purpose to their rights and as a result their search a job and attempts of rights are violated. In such situation people to sell their labour. Such migrant workers in many cases are people are called migrant workers forced to work as slaves. in the international law. Such The existing situation related to flows of people are usually from the migrant workers has always countries with continuous social- disquiet the international economic crisis, unemployment and community. A range of attempts low wages. within the framework of Presently millions of people in International Law have been made the world left their countries with for solution of the problems related the purpose to find a job. to the migrant workers. Unfortunately, we have to mention For solving problems related to that attitude to these people in the the migrant workers International hosting country is not unambiguous. Labour Organization adopted a Traditionally in most cases they range of conventions and become an object of suspicion and recommendations. We can show hostility. They may not integrate in Migration for Employment the existing situation and it makes Convention (No. 97,1949) of the them unlucky and depressed and International Labour Organization this on its turn brings to increase of among these. This Convention xenophobia elements against them. entered into force in 1952. It also In many cases immigrated shall be mentioned that as for May people do not know or poorly know 1, 1995 the Convention has been the language, culture, social and signed by 40 countries. The legal structure of the host country. convention provides that all

7 regulations (salaries, membership in • The ILO Social Security trade unions and etc.) applied to the (Minimum Standards) Convention, citizen workers of the country shall 1952 (No. 102) apply to the migrant workers legally • C111 Discrimination entering the country. The (Employment and Occupation) convention provides measures that Convention, 1958 shall be taken by member-states to • C117 Social Policy (Basic facilitate the procedures of coming Aims and Standards) Convention, to the country and return. 1962 No control mechanisms have • C118 Equality of Treatment been provided in the Convention. (Social Security) Convention, 1962 • C122 Employment Policy The Convention No 143 adopted Convention, 1964 by the International Labour Organization in 1975 was dedicated Because of the certain to Migrations in Abusive situations, it was impossible to Conditions and the Promotion of achieve the full solution of the Equality of Opportunity and problems of migrant workers within Treatment of Migrant Workers. the abovementioned norms. The The Convention entered into force main causes are: in 1978. • These norms haven’t No particular control been accepted by majority of mechanisms have been provided in countries; the Convention. • The obligations of the Together with abovementioned, states stipulated in conventions International Labour Organization were not fully implemented; adopted three recommendations • These conventions did regarding migrant workers. not have control mechanisms. A range of conventions of

International Labour Organization in Taking these into account in one way or another are related to the 1990 United Nations Organization rights of migrant workers. These are: adopted International Convention • C19 Equality of Treatment on the Protection of the Rights of (Accident Compensation) All Migrant Workers and Convention, 1925 Members of Their Families. The • Inspection of Emigrants Convention entered into force after Convention, 1926 it has been ratified by 20 member- • C48 Maintenance of states. Migrants' Pension Rights The Republic of Azerbaijan Convention, 1935 ratified the Convention.

8 According to the Convention • Right to receive any medical “The term "migrant worker" care that is urgently required; refers to a person who is to be • Right of child of a migrant engaged, is engaged or has been worker of access to citizenship and engaged in a remunerated activity to education. in a State of which he or she is not a national.” According to the Convention No migrant worker or member of his or Another definition of migrant her family shall be arbitrarily worker is provided in the European deprived of property, whether Convention on the Legal Status of owned individually or in association Migrant Workers adopted in 1977 with others. Where, under the by the Council of Europe: legislation in force in the State of employment, the assets of a migrant “For the purpose of this worker or a member of his or her Convention, the term "migrant family are expropriated in whole or worker" shall mean a national of a in part, the person concerned shall Contracting Party who has been have the right to fair and adequate authorised by another Contracting compensation. Party to reside in its territory in Besides, irrespective of their order to take up paid employment.” legal status member states recognize political and property rights of There are such provisions as - migrant workers including: Migrant workers shall enjoy • Being the subject of law; treatment not less favourable than • Their right to protection that which applies to nationals of from arbitrary arrest and the State of employment in detention; respect of remuneration and other • conditions of work, that is to say, Right of migrant worker to overtime, hours of work, weekly apply to the court in a language rest, holidays with pay, safety, they understand, to have adequate health, termination of the time and facilities for the employment relationship among preparation of their defence and to those provided in the UN communicate with counsel of their Conventions. Besides, the member own choosing, to have the free states shall recognize the assistance of an interpreter; following rights of migrant • In case of expulsion each workers: case shall be examined and decided • To take part in meetings individually by the competent and activities of trade unions and authority in accordance with law; of any other associations; • Right to liberty and security • Right to social maintenance of person; within certain conditions; 9 • Right to freedom of The appropriate measures thought, conscience and religion. have been taken on the regional The freedom of expression may be level for solution of problems of restricted for the purpose of the migrant workers. preventing any advocacy of The European Convention on national, racial or religious hatred the Legal Status of Migrant that constitutes incitement to Workers stipulates such rights of discrimination, hostility or migrant workers as medical violence. examination and a vocational test. After the migrant worker enters the Any migrant worker or member country the host country shall solve of his or her family who is detained such problems as recruitment of in a State of transit or in a State of prospective migrant workers, employment for violation of housing etc. The Convention provisions relating to migration obliges member-states that in the shall be held, in so far as matter of conditions of work, practicable, separately from migrant workers authorised to take convicted persons or persons up employment shall enjoy detained pending trial. Accused treatment not less favourable than juvenile persons shall be separated that which applies to national from adults and brought as speedily workers. The Convention founds a as possible for adjudication. Consultative Committee. The Consultative Committee has two Also other rights of migrant main functions. First, it considers workers including right to life, right proposals to amend the Convention. to protection from slavery or The second, it shall draw up servitude, from being subjected to periodically a report for the torture or to cruel, inhuman or attention of the Committee of degrading treatment or punishment. Ministers.

At the same time, nothing in the Although this Convention present part of the Convention shall entered into force in 1983, it has not have the effect of relieving migrant been ratified by the majority of workers and the members of their European states. families from either the obligation to comply with the laws and Other European documents regulations of any State of transit regarding migrant workers are and the State of employment or the provided below: obligation to respect the cultural identity of the inhabitants of such • European Convention on States. Establishment 1955; • European Convention on Establishment 1972; 10 • European Social Charter as such matters are regulated by law or 1961 and additional protocol 1991. regulations or are subject to the control of administrative authorities, treatment The provisions of the article of not less favourable than that of their European Social Charter on The own nationals in respect of the right of migrant workers and following matters: their families to protection and assistance are as follows: a remuneration and other employment and working conditions; With a view to ensuring the effective exercise of the right of b membership of trade unions migrant workers and their families to and enjoyment of the benefits of protection and assistance in the terri- collective bargaining; tory of any other Contracting Party, the Contracting Parties undertake: c accommodation;

1 to maintain or to satisfy 5 to secure for such workers themselves that there are maintained lawfully within their territories adequate and free services to assist treatment not less favourable than such workers, particularly in obtaining that of their own nationals with accurate information, and to take all regard to employment taxes, dues or appropriate steps, so far as national contributions payable in respect of laws and regulations permit, against employed persons; misleading propaganda relating to emigration and immigration; 6 to facilitate as far as possible the reunion of the family of a foreign 2 to adopt appropriate worker permitted to establish himself measures within their own juris- in the territory; diction to facilitate the departure, journey and reception of such work- 7 to secure for such workers ers and their families, and to provide, lawfully within their territories within their own jurisdiction, treatment not less favourable than appropriate services for health, that of their own nationals in respect medical attention and good hygienic of legal proceedings relating to conditions during the journey; matters referred to in this article;

3 to promote co-operation, as 8 to secure that such workers appropriate, between social services, lawfully residing within their public and private, in emigration and territories are not expelled unless immigration countries; they endanger national security or offend against public interest or 4 to secure for such workers morality; lawfully within their territories, insofar 11 9 to permit, within legal limits, • Appropriate International the transfer of such parts of the Norms to which the Republic of earnings and savings of such Azerbaijan is party; workers as they may desire; • Appropriate laws of the Republic of Azerbaijan; 10 to extend the protection and • Normative legal acts adopted assistance provided for in this article by the appropriate executive power to self-employed migrants insofar as organs within their authority. such measures apply.

There are also provisions related The Constitution of the Republic to the rights of migrant workers in of Azerbaijan the documents of the Organization for Security and Cooperation in Article 69 Right of foreign Europe. citizens and stateless persons Certain provisions of the Helsinki Final Act adopted at the I. Foreign citizens and Conference on Security and Co- stateless persons staying in the operation in Europe and the Charter Azerbaijan Republic may enjoy all of Paris for a New Europe are rights and must fulfil all obligations related to the migrant workers and like citizens of the Azerbaijan guarantees provided to them. Republic if not specified by Although documents adopted legislation or international within OSCE are not legally agreement in which the Azerbaijan binding, measures taken into Republic is one of the parties. account within its documents, II. Rights and liberties of particularly “OSCE Human foreign citizens and stateless Dimension” mechanism are an persons permanently living or important step for solving problems temporarily staying on the territory of migrant workers of the Azerbaijan Republic may be restricted only according to international legal standards and ANALYSIS OF THE laws of the Azerbaijan Republic. LEGISLATION The Labour Code of the The following legal normative Republic of Azerbaijan does not acts mainly comprise Legislative contain any discriminatory system of the Republic of provisions against aliens and Azerbaijan regarding migrant stateless persons in conducting workers: labour activity. According to the • Appropriate provisions of article 13 of the Code “Foreign the Constitution of the Republic of citizens and stateless persons who Azerbaijan; 12 have entered into employment Azerbaijan “The Law Legal contracts shall enjoy the same rights Status of aliens and stateless and have the same obligations as persons”, “The Law on defined in this Code, regardless of Immigration”, “The Law Labour their length of stay in the Republic Migration” among these and also of Azerbaijan, unless provided decrees adopted for implementation otherwise by law or an international of this laws and other documents. treaty to which the Republic of While determining the legal status Azerbaijan is a party. of aliens and stateless persons in the Foreign citizens and stateless Republic of Azerbaijan the persons may enter into employment Constitution and International contracts and exercise employee norms and traditions to which the rights by presenting a document state is party were considered basic. confirming their legal right to be in According to the laws, aliens and the Republic of Azerbaijan”. stateless persons may have the following statuses in the Republic of Azerbaijan: Certain norms determining • Upon observation of legal situation of aliens and immigration quota, the aliens and stateless persons in the Republic stateless persons who have obtained of Azerbaijan permission for immigration in accordance with terms stipulated in The Law of the Republic of the Law about Immigration may Azerbaijan “On Legal Status of arrive to reside permanently or Aliens and Stateless Persons” has temporarily in Azerbaijan Republic been adopted with the purpose to and by that they get immigrant determine legal situation of aliens status. and stateless persons in the • Aliens and stateless persons Republic of Azerbaijan. The main arriving to the Republic of aim of the Law is “... to regulate Azerbaijan on other legal grounds public relations, arising in are considered persons temporarily connection with legal status of residing in the Republic of aliens and stateless persons”. The Azerbaijan. law provides definition of aliens and stateless persons and determines Immigration status out of quota their legal status. There are also may be accorded to: other laws and normative-legal acts - an alien or a stateless person regulating legal situation of aliens who has close relations with a citizen and stateless person in the Republic of Azerbaijan Republic; of Azerbaijan, besides the - an alien or a stateless person Constitution of the Republic of who has got married to a person Azerbaijan and this law. There are permanently residing in Azerbaijan Laws of the Republic of Republic; 13 - in other cases provided in the stateless persons have labour rights. legislation of Azerbaijan Republic. According to the article 11 of the An immigrant is provided with Law “Aliens and stateless persons document certifying his/her status have analogous rights and bear by the appropriate executive analogous duties in labour relations authority and is registered. along with citizens of the Republic Aliens and stateless persons of Azerbaijan, if otherwise is not temporarily residing in the Republic qualified by the legislation of the of Azerbaijan shall be registered in Republic of Azerbaijan and accordance with procedure provided international treaties adherent to the in the legislation and shall leave the Republic of Azerbaijan. Republic of Azerbaijan upon Aliens and stateless persons expiration of the determined period. arriving in the Republic of According to the law the Azerbaijan for labour activity for a political asylum may be granted to definite time can be engaged in aliens and stateless persons in labour activity in compliance with correspondence with constitution the established order. and international norms to which In cases, if occupation of the state is party. definite positions and definite types According to the Law “The status of activity is stipulated by the of Refugees and IDPs (internally citizenship of the Republic of displaced persons” and international Azerbaijan, aliens and stateless norms to which the state is party aliens persons can not occupy such and stateless persons may obtain positions and deal with such refugee status. business.” According to the Law of the According to the provisions of Republic of Azerbaijan “On Legal the law, aliens and stateless persons Status of Aliens and Stateless have right to social maintenance. Persons” Aliens and stateless persons But this right is not provided in enjoy all rights and freedoms provided conformance with international in the Constitution on equal basis with norms to which the state is party. citizens of the Republic of Provision of pensions is mainly Azerbaijan, except for political rights. regulated by bilateral and Aliens and stateless persons have right multilateral agreements concluded to obtain property, including between states. The law guaranties immovable property and to exercise such rights of aliens and stateless rights related to the property, except persons as right to marriage, right to for right to property in land. Aliens rest, right to housing, liberty of and stateless persons have the rights conscience. of personal inviolability and Article 19 of the Law quarantees housing inviolability, right to freely the right to education for aliens and move and choose place of domicile. stateless persons. According to the According to the Law aliens and article “Aliens and stateless persons 14 permanently residing in the decision of the appropriate court Republic of Azerbaijan have a right (judge) in order determined in the to get education on the equal legislation” were later added to this grounds with citizens of the provision of te law. In previous Republic of Azerbaijan. For other practice expel of immigrant out of aliens and stateless persons bounds of the state was conducted education is paid (except for based on decisions of the relevant compulsory secondary education), state body (Ministry of Internal if otherwise is not qualified by Affairs). It contradicted to the state laws of the Republic of Constitution and provisions of the Azerbaijan and international international norms to which the treaties adherent to the Republic state is party and violated human of Azerbaijan”. rights and freedoms. According to the Law, aliens and stateless persons have a right to Notwithstanding the amendments join public unions, but they can not made to the law, the previous practice establish political parties and be is applied in reality and the judicial members of political parties. practice in this sphere is imperfect One of the important provisions and is not in favour of immigrants. of the law is related to the expel of According to the law, the order of aliens and stateless persons out of expel of the immigrant from the bounds of the Republic of country is determined by the Azerbaijan. According to the article appropriate executive authority. If the 27 of the Law, “When arising a immigrant does not leave the country necessity of ensuring the national within the provided period, he/she is security, protection of public order, arrested with the decision of the court health protection, rights and (judge) and forcibly expelled out of interests of population as well as frontiers of the Republic of when a rough infringement of Azerbaijan. The immigrant who does requirements of the legislation of not agree with expulsion may apply to the Republic of Azerbaijan on legal the court regarding this issue, but status of aliens and stateless appeal to the court does not interrupt persons takes place, aliens and execution of the previous decision and stateless persons, which do not have this on its turn makes consideration of status of immigrant can be expelled the appeal in court impossible. The out of bounds of the Republic of complainant has difficulties in Azerbaijan, in accordance with conducting procedural actions related decision of the appropriate court to the appeal because of being (judge) in order determined in the expelled from the country. legislation.” If alien and stateless person who It shall be mentioned that the obtained immigrant status is words “which do not have status of considered a person who suffered immigrant” and “in accordance with from human trafficking, the 15 administrative expulsion out of the reached 18 years old and being a frontiers of the Republic of capable alien or stateless person Azerbaijanis not applied against this shall be entitled to submit an person within one year. application for immigration to the The Statute on “Special Republic of Azerbaijan either Documents of alien and stateless directly or through diplomatic or person permanently residing on the consular missions of Azerbaijan territory of the Republic of Republic to the relevant executive Azerbaijan” has been adopted with body.” the purpose of application of the Law For this purpose they shall submit to that organ the documents required of the Republic of Azerbaijan “On by the law. The appropriate executive Legal Status of Aliens and Stateless authority consider and take a decision Persons. According to the Statute “the about application for immigration to document identifying the personality the the Republic of Azerbaijan not of stateless person permanently later than six month. The decision residing on the territory of the may be either to deny an application Republic of Azerbaijan – is Identity or accept it. Card provided to them in accordance According to the article 7 of the with and in the form determined by law “A foreigner or stateless the legislation of the Republic of person’s application for Azerbaijan”. The Statute determines immigration to Azerbaijan forms, types and order of issuance of Republic may be denied: the Identity Cards. According to the 1) if his/her immigration poses Statute “alien who wants to stay in the a threat to the state security of Republic of Azerbaijan more than 30 Azerbaijan Republic; days obtains the certificate about 2) if he/she is infected with registration of the person which is virus of dangerous transmissible provided in the form proved by the disease, put in the list defined by appropriate executive authority of the the relevant executive body; Republic of Azerbaijan”. 3) if he/she does not have documents providing his/her Legislation on Immigration identity; 4) if for obtaining a permission The Law of Azerbaijan for permanent residence in Republic on Immigration was Azerbaijan Republic he/she has adopted with the purpose to regulate provided false documents or untrue immigration of aliens or stateless information; persons to Azerbaijan Republic and 5) if he/she has committed a relations connected with it. grave crime during the last 5 years; The law regulates issues related 6) if he/she has been earlier to arrival of immigrants to the expelled from Azerbaijan Republic; Republic of Azerbaijan. According to 7) if an alien or stateless person the article 4 of the Law, “An adult and his/her family members 16 arriving for permanent residence agreements to which the state is do not possess sufficient financial party and the law of the Republic of means to meet their minimum Azerbaijan “On Legal Status of demands, except cases when they Aliens and Stateless Persons” and are provided by citizen of other normative legal acts. Azerbaijan Republic or person Persons who obtained permanently residing in Azerbaijan immigrant status and their family Republic.” members are moved to the Republic Grounds for denial of application of Azerbaijan accordance with the for immigration conform to the law of the Republic of Azerbaijan Constitution and appropriate about exit from the Country, entry international norms to which the state into the Country, and about is party. At the same time the Passports. Immigrants and their provision that denial “if their family members arriving to the immigration poses a threat to the Republic of Azerbaijan are state security and public order of registered in accordance with Azerbaijan Republic” is pritty legislation of the Republic of abstract. Azerbaijan. The qualified state body It is impossible to determine has been established for regulation what do these cases consist of and of immigration to the country. The how just they are. In practice this appropriate executive body provision provides opportunity to determines immigration quota for the appropriate state bodies to make implementation of state control in decisions based on its conclusions the field of immigration. not the law. That is why the threat to But because of large amount of the state security and public order aliens and stateless persons whose shall be clearly explained. Although status is not determined and those article 8 of the Law states that “A illegally residing on the territory of decision to deny a permission for immigration to Azerbaijan country determination of the quota Republic may be appealed against is impossible. Each immigrant to a court in accordance with laws arriving to the country may of Azerbaijan Republic.”, in voluntarily learn the legislation of practice such appeals are the country. Appropriate executive unproductive and complicated. body shall take appropriate According to the Law, in case of measures for this purpose. denial an application for A range of other normative legal immigration shall be reconsidered acts have been adopted by the not earlier than in one year after the President and the appropriate first decision was taken. executive bodies for regulation of The legal status of immigrant in immigration issues. the Republic of Azerbaijanis regulated by the international

17 Labour Migration and the Norms residence by physical persons Regulating It within the territory of the Republic of Azerbaijan to perform disbursed A range of laws and legally labour activities. Migrant worker binding acts have been adopted with means a “physical person migrating the purpose to determine rights and from one country to another to obligations of the migrant workers perform disbursed labour provided in the Constitution of the activities”. According to the law Republic of Azerbaijan and family members of migrant workers appropriate international norms to mean spouse of the migrant worker, which the state is party and legally his/her children under 18 and regulate the processes related to parents under his/her tutorship. them. The Law of the Republic of The law also determines Azerbaijan on “Labour Migration” Volatile labour migration which is one of the main laws among these means daily movement of the norms. The law determines the persons, permanently residing in legal, economic and social grounds frontier area points, to and from the of the labour migration problems, neighbouring country for the regulates relations in the field of purpose of the performance of labour migration. labour activities. The law also “The processes of labour provides definition of the Labour migration are regulated in migration. accordance with this law, but some laws on migration do not meet the According to the Law on Labour demands of the times. Particularly, Migration the quota is determined serious shortcomings in determining for labour migration. Labour the types of visas and in issuing migration quota is established for visas hinder the law on Labour each year to set up limitation of Migration from being fully aliens allowed to arrive in the implemented”1 Republic of Azerbaijan to According to the Law “Labour perform labour activities for the Migration means changing the purpose of regulating labour place of residence by physical migration to the Republic of persons to perform disbursed Azerbaijan. labour activities”. According to the The law determines the range of law labour migration means also migrant workers. According to the Domestic labour migration which law, the following are not means changing the place of considered migrant workers: Those who permanently reside in 1 Informed Migration. Reference guide for the country of employment; who Migration Practicioners.Azerbaijan. have a refugee status; who have got a International Organization for Migration. political asylum; who have registered Baku-2004 and acted as a private businessman; 18 managers of the organisations labour resources, and (iii) labour established under international migration related international agreements; employees of diplomatic treaties, to which the Republic of representations and consulates; Azerbaijan is a party. employees of international According to the Article 8 of the organisations; who are on a business law “Aliens and stateless persons travelling; who perform religious employed by person or legal activities in the officially registered entity (employer) may arrive to religious organisations and societies; the territory of the Republic of who take practice during a period of Azerbaijan with special viza holiday within the framework of providing the right to implement higher educational programmes; paid labour activity in the accredited employees of media; Republic of Azerbaijan issued by sailors; artists and actors; professors, the appropriate executive lecturers and teachers invited to authority based on the personal higher educational institutions. permit”. According to the Aliens and stateless persons from requirement of the Law Aliens and all other categories implementing stateless persons who arrive to the labour activity are considered migrant territory of the Republic of workers. There are certain conditions Azerbaijan to implement paid for the persons related to this labour activity in the Republic of category for performing labour Azerbaijan shall obtain appropriate activity on the territory of the permission while being in the Republic of Azerbaijan. These country of origin and prepare conditions ar provided in this law and appropriate documents. other documents adopted for “Foreigners are allowed to work implementation of this law. legally in the Republic of Every able-bodied and over 18 Azerbaijan by performing paid years old alien or stateless activities if they were granted an (hereinafter referred to as alien) is individual permission for this. Since entitled to perform labour activities 2001 Foreigners employed by within the territory of the Republic physical and legal entities must of Azerbaijan. According to the law obtain a visa individually issued by Principal conditions for MFA, granting them a work permit performing labour activities by for Azerbaijan. A “physical entity” aliens involve: (I) existence of a is an individual, while a “legal” (or job vacancy that is not demanded juridical) entity is a company, by a citizen of the Republic of organisation, firm, or corporation Azerbaijan having skills and etc. In practice, due to an outdated qualification required for such visa system, labour visas are not job, (ii) inability of employment issued. For entering Azerbaijan services to meet employers’ need in manpower at the cost of local 19 foreigners must obtain an ordinary (except pension provision) are entry visa”2 violated, even migrant workers who become disabled after accident at The Republic of Azerbaijan the place of work or because of bears international responsibility for occupational diseases may not maintenance of family members of obtain any compensation. migrant workers. From this point of view the Law contains provisions With the purpose of related to social protection of implementation of the Law of the migrant workers and their family Azerbaijan Republic «On Labour members. According to the article Migration» the Cabinet of Ministers 10 of the Law, “The labour of the Azerbaijan Republic issued migrants and their family Decree No 214 on December 6, members have equal to citizens of 2000. Regulations on issuance of Azerbaijan, performing labour personal permits to foreigners for activities and their family carrying out of paid labour members, rights to social activity on the territory of the maintenance (except pension Azerbaijan Republic have been provision). The pension provision approved by this Decree. The to labour migrants and their Regulations regulate application of family members shall be norms provided in the constitution regulated in accordance with of the Republic of Azerbaijan, bilateral or multilateral International Norms to which the international treaties to which the state is party, the Law on Labour Republic of Azerbaijan is a Migration and other normative legal party”. acts. In fact, this document adopted Although the provision related for determining procedures related to rights of labour migrants and to the paid labour activity of their family members to social migrant workers, for establishing maintenance (except pension legal grounds for implementing provision) are stated in the Law, in necessary technical activities for practice rights of labour migrants migrant workers to start their labour and their family members to social activity, creates multiple obstacles maintenance are not provided. The for migrant workers instead. main reason for that is their illegal Improper application of these position. Because of this, rights of Regulations by the appropriate labour migrants and their family authorities forces migrant workers members to social maintenance to perform illegal labour activity in the country.

2 According to the article 1.2. of Informed Migration. Reference guide for the Regulations “The foreigner Migration Practicioners.Azerbaijan. International Organization for Migration. arrived to the territory of the Baku-2004 Azerbaijan Republic with the 20 purpose of carrying out of failure of the employment service personal labour activity can work to provide the employees to the in the Azerbaijan Republic only employers from local manpower under the personal permit, issued resources”. for his name”. It is seen from the According to the Regulations, to provision that the foreigner or obtain the personal permit, an stateless person who arrived to the employer should submit the territory of the Azerbaijan Republic “notarized copy of certificate with the purpose of carrying out of confirming the specialty of the personal labour activity shall foreign employee, required for previously find a job and afterwards carrying out of envisaged work” obtain personal permit. As we see, among other documents. We can migrant workers do not have right see from the Regulations that to apply directly to the state body. migrant worker without speciality The process easy at first site is very have no opportunity to conduct complicated in practice. Thus, labour activity in the Republic of according to the Regulations, to Azerbaijan. Because, no other cases obtain the personal permit, an are provide in the Regulations and employer should submit the provision of the certificate “reference, proving the necessity confirming the specialty is an of involvement of foreign important condition. employee for each envisaged One of the main problems workplace” to the appropriate creating obstacles for legal activity executive authority. In practice of migrant workers in the country is provision of such “proving that the migrant worker arriving to reference” is very difficult. More the country shall enter the country precisely, any executive authority particularly as migrant worker. may consider the reference as not Otherwise, alien or stateless person well-grounded. For example, the who entered the country on other appropriate executive authority may grounds “... should obtain visa show that there are enough conferring the right to carry out professionals permanently residing labour activity on the territory of in the country. According to the the Azerbaijan Republic on the article 1.4 of the Regulations basis of personal permit ”. “...The main conditions for According to the Law of the carrying out of labour activity by Republic of Azerbaijan “The Law the foreigners are availability of on Exit, Entry and Pasports” and vacant work places, to which the the Statute on application of the citizens of the Azerbaijan Law of the Republic of Republic having the vocational Azerbaijan “The Law on Exit, training and specialty Entry and Pasport” “Aliens and corresponding to requirements of Stateless persons” may enter the work places not pretends and Azerbaijan Republic as specified 21 by Law on condition of passage live and work in illegal situation. through special check-points on a And this brings to the violation of basis of personal passports and their rights by employers and organs permission — visa, issued in of internal affairs. When performing accordance with international labour activity without employment agreements”. According to the law agreement they may not demand and the statute the simplified realization of their labour rights, permission — visa system is receive informal salaries and are not applied for exit and entry of the ensured. Because of illegal residing aliens and stateless persons. At the in the country they face threat of same time in accordance with being expelled from the country. various bilateral and multilateral Their family members may not use agreements the permission — visa medical services; education for their system is not applied for a range of children becomes a problem. countries for entry to the Republic Because of complicated of Azerbaijan. These countries also procedures and conditions provided include CIS countries. If we’ll take in the legislation hinders employers into account that 90% of migrant and aliens and stateless persons workers came to Azerbaijan fro arriving to the country for Georgia and non-visa regime is performing labour activity from applied between this country and legalization of their activity. the Republic of Azerbaijan then the According to the article 3.1 of the situation becomes clear. In practice, Regulations on issuance of very seldom we may meet migrant personal permits to foreigners for worker from Georgia who obtained carrying out of paid labour official migrant worker status in activity on the territory of the Azerbaijan. Although ten thousands Azerbaijan Republic “Personal of Georgian citizens arrive to permit is issued for the period of 1 Azerbaijan and perform labour (one) year. Term of personal activity the amount of Georgian permit may be extended 4 times, citizens performing their labour each time not more than for activity with personal permit has period of one year. For extension been 235 persons for January 1, of the term of personal permit the 2008. in Azerbaijan. Till January employer should apply to the 2009 this amount increased to 355. Ministry of Labour and Social Thus, persons arrive to the country Protection of Population of the with other reasons, although their Azerbaijan Republic 1 month primary purpose is to look for job prior the expiry of the personal and perform labour activity. Aliens permit”. Together with application and stateless persons arriving to the the employer shall submit all other country on legal grounds with other documents as it was required reasons, but then performing labour initially and shall justify the activity may not register and have to 22 necessity of prolongation of the there are ten thousands of migrant period. workers residing in Azerbaijan for more than 10 or 15 years which did Another restriction provided in not leave the country or left for a the Regulations is related to the very short period of time (less than change of position and place of 1 year), which in no case may work. The article 1.3. of the obtain personal permit by observing Regulations shaw that, “Labour all procedures. If we take into contracts with the foreigners account that many of these people should be concluded for the have lost their citizenship during period corresponding to the this period and became stateless validity of personal permit. persons (or are considered stateless Employer cannot forward the persons) then settlement of the foreigner obtained the personal problems requires more serious permit to another employer”. This decisions. In the world practice the provision restricts the right of naturalization method is applied to migrant worker to freely choose such persons. But in the Republic of place of work in accordance with Azerbaijan settlement of such his/her profession and specialization problems is a long and complicated and conclude employment process. Granting citizenship is agreement. To forward the foreigner authority of the President of the to another place of work the Republic of Azerbaijan. According employer shall apply to the Ministry to the Regulations payment of state of Labour and Social Protection of duty is also applied. the Population of the Azerbaijan Another serious problem is Republic. And this is resulted with related to the disputes which may reiteration of the whole procedure arise between migrant worker and and loose of time. Thus even if such employer. According to the article permit will be obtained, according 4.1. of the Regulations “In case of to the regulations, its term shall not early termination of labour exceed the remaining part of the contract concluded between the previous permit. foreign employee and employer, Any change in Identity Card or the personal permit issued to the loose of personal permit by the foreign employee becomes null foreigner brings to the reiteration of and void”. the procedure. As we can see termination of Aliens and stateless persons labour contract concluded between shall leave the country after 5 years the foreign employee and employer they lived and performed labour for any reasons puts that person in activity in the Republic of out of law situation. In this case the Azerbaijan and shall live in the person shall leave the country. country of origin or the third According to the article 4.2. of the country at least one year. Presently, Regulations “ In case of expiry of 23 personal permit or termination of performing disbursed labour activity labour contract the foreign with personal permit was 4367. employee must leave the territory According to the Regulations, of the Azerbaijan Republic”. the right to conduct control over Although, everyone has right to attraction of the foreign employees restore his/ her right by means of to the labour activity was delegated court. to the appropriate department of the Thus, laws and other normative Ministry of labour and Social legal acts adopted by the Protection of Population. And this appropriate executive authorities department has right to conduct contradict the international norms to inspection of the exploitation of which the state is party and provide foreign labour force in accordance such complicated and abstract with appropriate normative legal conditions that neither physical nor acts. legal entities may employ alien or During inspection, the official of stateless person within these the appropriate department of the condition. This may happen only if Ministry may obtain information, the official of the appropriate state certificates from employer and body will agree to it (i.e. based on foreign employees, may conclude personal conclusion, not the acts or notifications regarding legislative norms). And this in many revealed violations, may consider cases brings to the negative the issue of termination of the situations, arbitrariness of officials, personal permit, may solicit the creation of bureaucratic obstacles expulsion of the foreign employee and corruption. As a result, from the country. presently, ten thousands of aliens or Attraction of the foreigners or stateless persons perform disbursed stateless persons by the employer to labour activity in the country, but the work without obtaining these persons do not have personal individual permits, with violation of permit for this activity. Therefore, the requirements of the legislation is majority of these persons have to penalized by fine. The amount of work in the informal sector. Till fine is very huge in the scope of the January 1, 2008, the amount of country. According to the article 53 aliens and stateless persons of the Code on Administrative performing disbursed labour activity Violations it shall shall involve with personal permit was 1700. It penalization on officials at the rate was possible to obtain personal of thirty thousand to thirty five permit for these migrant workers thousand manats (36 585-42 682 from 65 countries, because they USD) worked for large foreign companies. Thus, the procedures In January 1, 2009, the amount of contradicting the Constitution, aliens and stateless persons international norms to which the state is party including UN 24 Convention on the Protection of the labour migration. As we see the Rights of Migrant Workers and development of country’s Members of Their Families, were economy, the number of determined by means of the foreigners who take part in the Regulations. Starting labour activity internal labour market is getting by observing all the procedures is higher. The favourable disadvantageous for alien geographical location of the employees and the employers. At Republic of Azerbaijan as well as the same time, alien or stateless the economic reforms that are person who entered the country in carried out in the country, the any was and found a job is not contracts signed leading interested in legalization. worldwide companies, the commissioning of Baku – Tbilisi – The State Migration Program Jeyhan oil pipeline named after of the Republic of Azerbaijan Heydar Aliyev, the restoration of the Great Silk Way and the The President of the Republic of implementation of other Azerbaijan approved “The State international communication Migration Program of the projects have become as causes of Republic of Azerbaijan” for 2006- the increase of labour migration 2008 by his order adopted on July flows.”. It is stated in the document 25, 2006. The main purpose of the that, “It is necessary to conduct Program is “...to execute state the strict registration and record policy in the sphere of migration, the statistics of migrants in order bring legislation in conformity to ensure the State regulation of with international standards, migration processes. The elimination of law abuse, provide information contained in the national safety and stable socio- official statistics bodies on economic and demographic foreigners who stay in the development, effectively use of territory of the country does not labour resources, and organize reflect often times the real proportional settlement of the situation. population. Use of the intellectual At the same time, there are and labour potential of migrants illegal migrants in the territory of and the elimination of negative the Republic of Azerbaijan – consequences of illegal migration foreigners that came into the as well as migration and human country, and live or work here trafficking, implementation of violating the dispositions of the social protection activities”. It is current legislation.”. stated in the State program that, It is stated in the State program “The biggest part of the external that, In the result of the effect of no migration in the Republic of visa entry and exit regime that Azerbaijan is represented by the exists between the Republic of 25 Azerbaijan and several States, migrant workers to enter the insufficient control over aliens and country, have many shortcomings stateless persons, who cross the and create conditions for officials to territory of our country as a transit take decisions based on their or enter into the Republic of conclusions not the law. The Azerbaijan for the short stay and document contains the following mistakes committed by relevant measures that shall be taken by the State bodies in the implementation appropriate state bodies together for of laws, the number of foreigners prevention of illegal migration: who attempt to use illegally the - to speed up the process of territory of our country as a way for creation of the integrated migration entering into third States or living in control system which will realized the Republic of Azerbaijan with any the effective activities; legal reasons is increasing. Even if - while protecting legal interests it is proved in the State Program of migrants, to undertake measures approved by the President of the against aliens and stateless persons Republic of Azerbaijan that the who breached the legislation of the policy in the field of migration has Republic of Azerbaijan, including gaps, during about three years of the improvement of legislation Program implementation no which envisage their deportation; effective measures have been taken - to activate negotiations process to substantially change the situation. with neighbouring states and It shall be mentioned that, instead of conclude relevant agreements which measures on improvement of envisage obligations and situation of migrants including responsibilities in combating illegal migrant workers in the country the migration; measure on prevention of their entry - to form the common system of to the country prevailed. From this registration of aliens and stateless point of view protection of persons which will contain data of migrants’ rights was placed on the number, place of residence, last stage among the priority spheres profession of aliens and stateless in the Program. The priority issues persons and other necessary also reflected prevention of illegal information (Information Centre on migration. At the same time Migration). prevention of entry of illegal migrants including migrant workers Certain events have been to the country by administrative determined with the purpose of means prevails. However, the implementation of State Program on conditions for legal labour activity Migration of the Republic of of migrant workers in the Republic Azerbaijan. Several of these of Azerbaijan were not created. The measures are related to the migrant abovementioned documents which workers. These measures include shall provide legal grounds for the following: 26 • Applying of immigration these measures. One of the main quotas taking into account the needs hindering factors is that about 50% of internal labour market; of the labour market is informal • Preparation of proposals labour sector. At the same time, about the expediency of adherence majority of migrant workers who of the Republic of Azerbaijan to the perform disburced labour activity European Convention on the legal are occupied in the informal sector. status of the labour migrants. The main reason why they are • Analysis of the current status occupied in the informal sector is of labour migration processes and that they are unable or do not want preparation of relevant report to determine their status as it was • Preparation of proposals on mentioned above. the creation of the relevant system which ensures the conduct of Responsibility for violation of monitoring on attracting foreign the Immigration regulations work force and its use in the Republic of Azerbaijan Violation of regulations related • Undertaking the necessary to immigration by aliens and measures to improve the relevant stateless persons in the Republic of forms of statistical reports related to Azerbaijan, also violation of labour migration, increasing the regulations on entry to, exit from work efficiency for registration and the country, registration and etc tracking of labour migrants creates certain relations in • Creation of normative and accordance with legislation og the legal basis to conduct strict Republic of Azerbaijan. A range of registration of migrants who are to provisions of the Code of be deported from the Republic of Administrative Violations of the Azerbaijan, as well as persons who Republic of Azerbaijan are intend to obtain the status of a determining material responsibility refugee (seeking shelter), for these violations. Residence of organizing their places of detention foreigners or persons without and ensuring the their activities citizenship at the territory of Appropriate executive bodies Azerbaijan Republic without have been attached to the registration, or their stay at the implementation of these measures. territory of Azerbaijan Republic In fact implementation of these without registered permission measures could cause improvement (visa), except occasions envisaged of the legal and real situation of by international agreements, entails migrant workers. At the same time administrative deportation of present situation at the labour foreigners or persons without market hinders effective citizenship beyond limits of implementation of the many of Azerbaijan Republic with imposition of penalty in amount of 27 one hundred to four hundred manats established order of their (121-484 USD). registration, removal from According to another article of registration, legalisation of the Code on Administrative residence documents for them, Violations, violation by foreigners transportation and change of and persons without citizenship in residence place in Azerbaijan Azerbaijan Republic of rules of Republic, then shall entail residence in Azerbaijan Republic i.e. imposition of penalty on officials in - Residence without documents the amount of three hundred to five on residence right in Azerbaijan hundred manats (366-610 USD). Republic; The article 457 of the Code on - Residence by documents, Administrative Violations is related which are acknowledged invalid; to the Execution of the decision on - Violation of established rules administrative repatriation from the at fixing up in a job work, non- territory of the Azerbaijan Republic observance of established order of of foreigners and individuals registration or residence permit, without citizenship. According to either transportation and selection the article “Aliens and Stateless of place of residence; persons shall leave the territory of - Evasion from leaving on the Azerbaijan Republic within a expiry of term of stay established by timeframe stipulated by the legislation; resolution on their administrative - Non-observation of rules of repatriation.” The article states transit journey via territory of that “Costs incurred in relation to Azerbaijan Republic shall entail administrative repatriation of imposition of penalty: on foreigners foreigners or individuals without or persons without citizenship- one citizenship from the territory of hundred to four hundred manats the Azerbaijan Republic shall be (121-484 USD), with or without covered by these persons.”. deportation outside the boundaries If these persons do not have of the Azerbaijan Republic. funds for repatriation from the If official persons of enterprises, territory of the Azerbaijan Republic offices and organisations of such costs shall be covered by the Azerbaijan Republic, receiving host entities, enterprises and foreigners or persons without organisations and for foreigners or citizenship, providing their care or individuals who visit the Azerbaijan acceptance to work, accomplish Republic on personal business- by their obligations, connected with the relevant executive authority of observance of conditions of stay of the Azerbaijan Republic.. foreigners or persons without Admittance to the citizenship citizenship in Azerbaijan Republic and transit journey via territory of Azerbaijan Republic, violating 28 One of the serious problems his/her parents is the citizen of the migrant workers face in the Azerbaijan Republic”. From this Republic of Azerbaijanis related to point of view, persons who came in the admittance to the citizenship. past to Azerbaijan and could not Many migrant workers for certain obtain citizenship do not have reasons lost the citizenship of the problems with obtaining citizenship country the citizens of which they for their children born in were before. But part of migrant Azerbaijan. But however, there are workers residing in the country did some problems related to obtaining not have citizenship at all. Majority citizenship for the children of aliens of these people related to both and stateless people born in categories were citizens of the Azerbaijan. At the same time later former Soviet Union. After the problems related to the citizenship collapse of the Soviet Union as a bring to the problems of access to result of various negative events in health care and education. the former Soviet Republics they The Law of the Republic of had to leave that places and had to Azerbaijan on the Citizenship of emigrate. Presently there are the Republic of Azerbaijan was stateless people who came as adopted on September 30, 1998 refugees to Azerbaijan from with the purpose of provision of the Georgia and Middle Asia did not rights stipulated in the article 52 of register and presently performing the Constitution of the Republic of illegal labour activity and Azerbaijan and regulates issues entrepreneurship. Great part of these related to admittance to the people does not have identification citizenship and loss of citizenship. documents. Although these people At the same time the Statute on try to obtain the citizenship of the regulations regarding Republic of Azerbaijan they are consideration and settlement of unable to do it. the citizenship issues was approved According to the article 52 of by the Decree of the President of the the Constitution of the Republic of Republic of Azerbaijan on August Azerbaijan “A person having 30, 1999. political and legal relations with According to the article 11 of the Azerbaijan Republic and also the Law of the Republic of mutual rights and obligations is Azerbaijan “on Citizenship of the the citizen of the Azerbaijan Republic of Azerbaijan” a person Republic. A person born on the shall acquire the citizenship of the territory of the Azerbaijan Republic of Azerbaijan in the Republic or by citizens of the following cases: Azerbaijan Republic is the citizen of the Azerbaijan Republic. A - when born on the territory of the person is the citizen of the Republic of Azerbaijan, or born from Azerbaijan Republic if one of 29 citizens of the Republic of standards. However, the situation in Azerbaijan; practice is more complicated. At the According to this provision of same time other provisions of the the Law both principles of the Law and the Statute establish many international law related to the restrictions which create serious citizenship “jus soli” and “jus problems for aliens and stateless sanguinis” are applied. At the same persons, including migrant workers time person is the citizen of the who want to obtain citizenship. Republic of Azerbaijan if both or Article 14 of the law determines one of his parents is the citizen of bases for Admission to the the Republic of Azerbaijan citizenship of the Republic of irrelevant of the place of birth. Azerbaijan. According to this - as a consequence of admission provision “Aliens and Stateless to citizenship of the Republic of persons living on the territory of Azerbaijan; the Republic of Azerbaijan - by reasons stipulated by already for 5 years and bilateral and multilateral international submitting a document about the treaties of the Republic of knowledge of the state language Azerbaijan; may be admitted to the citizenship - by other reasons stipulated by of the Republic of Azerbaijan the present Law. upon their application in The article 12 of the law states compliance with this Law that, “A child born on the irrespective of racial and national territory of the Republic of affiliation, sex, education, Azerbaijan from stateless persons language, religious beliefs, is a citizen of the Republic of political and other convictions, Azerbaijan.” place of residence.” The article 13 of the law states According to the article 109.20 that, “A child born from unknown of the Constitution of the Republic parents on the territory of the of Azerbaijan, Prezident of the Republic of Azerbaijan is a citizen Republic of Azerbaijan settles of the Republic of Azerbaijan”. questions concerning citizenship.

Thus, appropriate documents shall If we pay attention to these be submitted to the President of the provisions of the Law, we see that Republic of Azerbaijan with the rules for obtaining citizenship of observance of the procedures the Republic of Azerbaijan are very provided in the legislation and other liberal and there are few normative acts. President may admit restrictions. From this point of view or reject the applications of alien or appropriate regulations and stateless person. procedures provided in the Settlement of the citizenship Constitution and appropriate issue on the presidential level legislation conform to international requires passing a long and 30 complicated way from the person its citizen will become a citizen of who wants to obtain a citizenship. the Republic of Azerbaijan. If the Migrant workers in many cases may applicant may not provide such not settle their citizenship problem document by reasons independent because this is a long procedure of him/her then it shall be which may last for years and mentioned in the application. decades and requires expenses. Even if collection and submission According to the Statute on of these documents is easy at first regulations regarding sight, in fact it is very complicated consideration and settlement of and sometimes impossible process. the citizenship issues the person Thus, it will be impossible to obtain who wants to obtain citizenship of these documents for the person who the Republic of Azerbaijan shall fill illegally lived and worked in in an application addressed to the Azerbaijan for a long period.. President of the Republic of Persons legally residing but Azerbaijan in the form approved by illegally performing labour activity the President of the Republic of (without personal permit) will also Azerbaijan and submit it to the face problems while submitting Ministry of Internal Affairs of the documents for obtaining citizenship. Republic of Azerbaijan. Thus, the 14th section of the Also the following documents application is related to the labour shall be enclosed to the application: activity of the applicant. The person 4 photographs (3x4 cm); who wants to obtain the citizenship Certificate from the place of shall state place of work, address of residence about the family the employer, time of being composition; employed and dismissed. Receipt on payment of the state Many of the migrant workers do duty; not have official and permanent place Certificate from the place of of residence, therefore they may not residence certifying that the person provide certificate about the family resided in Azerbaijan during last 5 composition and registration years; according to the place of residence. Certificate from the ministry of If the person who wants to obtain education about knowledge of the citizenship is ethnic Azerbaijani from state language of the Republic of Georgia (a citizen or a person who Azerbaijan. was a citizen of Georgia but then lost In addition to these documents if the citizenship), it is easier for the person is a citizen of the state him/her to provide a document with which the Republic of proving the knowledge of the state Azerbaijan has agreement about language. But, this procedure is also prevention of the bouble citizenship problematic for those who are not shall submit a document proving the ethnic Azerbaijanis and whose attitude of the state to the fact that mother language is not Azeri. 31 Although according to the legislation procedure is provided for them. the measures shall be taken for These persons shall apply to the learning of the state language by Ministry of Internal Affairs not for aliens and stateless persons, in reality obtaining a citizenship, but for activity in this field is very poor. obtaining the identification card of Alien of stateless person willing to the citizen of the Republic of obtain citizenship has to study the Azerbaijan. language on his/her own expense, but Thus, although there is in many cases they do not have appropriate normative legal base means for that. Thus, they may not existing in the country for obtaining obtain the appropriate certificate. citizenship and these norms are According to the Statute, if the enough for obtaining citizenship, in persons which are not citizens of the reality thousands of people (majority Republic of Azerbaijan or of any of them are illegal migrant workers) other country, but registered in the may not obtain this right for years. Republic of Azerbaijan according to the place of residence till January 1 1992, applied for citizenship of the Republic of Azerbaijan till September 30, 1999 a little bit different

NONSTRUCTURED INTERVIEW WITH MIGRANT WORKERS

During the monitoring process 4. How did you establish relations nonstructured interviews have been with employer? Do you have conducted with migrant workers employment agreement? occupied in different spheres. 5. Did the employer provide Mainly the following questions accommodation for you? have been given to migrant worker 6. Which problems you face during interviews: regarding the fact that your 1. When and how you entered the immigration documents are out of country? order and you are in illegal 2. What you did to start your labour position? activity (i.e. which procedures you 7. Which problems do your family used to start your labour activity)? members face? 3. Why you work particularly at this 8. Can your children obtain free work place? Did you try to work at compulsory education? another place and with another Also other questions were given to profession? the migrant workers together with 32 these questions. But these questions several places. Application of high were not important for monitoring. fines for employment of aliens and 52 migrant workers attracted to stateless persons without obtaining interviews may be divided mainly personal permit in accordance with into the following groups. legislation even worsens situation of • Those who legally arrived to this category of employees. the country, but performing labour Majority of those attracted to activity without personal permit; interviews mentioned that it • Those coming from becomes more and more difficult to countries which do not have visa perform illegal labour activity. regime with the Republic of Employers fire them out without Azerbaijan, but performing illegal any previous notification (exactly labour activity (these are ethnic fire, because employment Azerbaijanis from neighbouring agreements were not concluded Georgia); with them and their labour relations • Those who illegally entered were not formalized in any way), the country without any visa and decrease the salaries, make them performing illegal labour activity; work overtime and perform work • Performing labour activity other than their primary job. A part with personal permit. of these persons mentioned that they are not provided with separate During interviews with migrant accommodation. Majority of these workers who legally arrived to the persons live collectively in small country, but performing labour apartments on the outskirts without activity without personal permit it proper utilities. Those with family was discovered that majority of members live with their families in them arrived to the country 5-7 apartments without any conditions. years before and some of them even None of the interviewed migrant earlier. From this we may conclude workers receive separate payment that if they would obtain personal from the employer for permit to perform labour activity, accommodation expenses and none presently they had to be out of of them is accommodated by the frontiers of the country. employer. All these persons noticed that, they may prolong their immigrant status Aliens and stateless persons coming each time, but they never thought to the Republic of Azerbaijan from about legalization of their labour countries which do not have visa activity. Their employers do not rejime with the Republic of want to obtain personal permits for Azerbaijan comprise the main part them. of the migrant workers in the Majority of these persons country. mentioned that they had to work at Majority of these persons are ethnic Azerbaijanis from neighbouring 33 Georgia. There is no visa rejime vaccinated and this on its turn between Georgia and the Republic brings to infectious diseases. of Azerbaijan, therefore they may enter the country without any As it was mentioned before, obstacles and register according to because the visa system is the place of residence. But, did not imperfect, those who want to come obtain any permission to perform to the country to perform labour labour activity. These persons are activity obtain common visa to enter occupied mainly at the small the country and then obtain production workshops, construction immigrant status. Only after this brigades and in the trade sector. they start their labour activity by This category of migrant workers means of their employer who mainly performs labour activity at obtains 1-year personal permit for the trade, nourishment and them. While analysing legislation production units possessed by their above it was shown that even those relatives or acquaintants who who pass all procedures to perform already obtained citizenship of the labour activity face multiple Republic of Azerbaijan. Being problems in labour relations. Thus, ethnic Azerbaijanis creates these employees are in situation conditions for them to live and fully dependant from their perform labour activity illegally. employer. But, according to the But at the same time labour rights of state Constitution, all employees the majority of these persons are have equal right and any violated. Majority of migrant discrimination is inadmissible. workers attracted to the interview During interviews with migrant related to this category stated that workers who perform labour they work without any employment activity with personal permit they agreement and receive low salaries. mentioned that employer attracts Persons related to this category state them to the jobs which are not that the main problem for them is stipulated in the employment inability to obtain citizenship. But at agreements, makes them work the same time many of these overtime and on holidays and persons obtained immovable weekend and do not pay for property (the plots of land are overtime work. Migrant workers registered in the name of their mentioned that, when they try to relatives who are citizens of the protest employers threaten them Republic of Azerbaijan). Migrant with termination of the employment workers attracted to the interviews agreement. And this means that the show that another problem for them personal permit immediately looses is absence of access for their its force. In such situation migrant children to the health care. Large worker looses his/her immigrant part of newborn children is not status and has to immediately leave the country. According to the 34 legislation migrant worker may performed labour activity in the complain to the court about Republic of Azerbaijan and shall violation of his/her labour rights, live in the country of origin or the but in practice it is very difficult. third country at least one year. Thus migrant worker who leaves the There were several persons among country may bring a suit and interviewed migrant workers who participate on the court hearings worked the last year. They shall only via attorney or a leave the country next year. They representative. Majority of migrant said that there is a need for them at workers are insolvent that is why their work place and the employer is they can not do it. From this view willing to continue relations with point the situation of migrant them. At the same time these workers who perform labour persons do not want to leave the activity based on personal permit is country harder and they have less They will face unemployment and opportunity for protection in social problems in the country of comparison with illegal migrants. origin or the country of which they Migrant workers illegally residing are citizens. But employer has to in the country and illegally terminate their employment performing labour activity continue agreements. In such situation to stay in the country and may find migrants prefer to illegally perform new job after they loose the their labour activity. Another previouse one. Another problem of problem of this category of migrant aliens and stateless persons workers is that they are unable to performing labour activity with change their place of work. That is personal permit is a very short why these people have to work only period of the personal permit. at one place of work and at one According to the Law on Labour position. Legal activity will froce Migration and Regulations on them to leave the country. Migrant issuance of personal permits for workers performing legal labour carrying out of paid labour activity also mentioned that their activity on the territory of the family members face problems in Azerbaijan Republic by the access to the medical services and foreigner and specimen of this education. personal permit the term of the personal permit is one year. In addition to the abovementioned Personal permit is issued for the there are also aliens and stateless period of 1 (one) year. Term of workers employed by foreign personal permit may be extended 4 companies in the country. Majority times, each time not more than for of these companies do not provide period of one year. Aliens and information about these employees stateless persons shall leave the to the Migration Department of the country after 5 years they lived and Ministry of Labour and Social 35 Protection of Population. Although brought from European and other there is big number of such developed countries receive higher employees we could not talk to any salary and they have better working of them. These persons are not conditions. The other category of interested in spread of any employees contain those from information about them. This South-East Asia and Africa. category of migrant workers are Although these persons have less considered as relatively maintained benefits that those from western migrants. Although foreign countries their salaries are higher companies consider them as illegal than those of local staff. category in accordance with their country of origin. Employees

ANALYSIS OF STATISTICS REGARDING MIGRANT WORKERS

The statistics related to aliens and residence. As a result exact statistics stateless persons in the country are may not be collected about them; very superficial and do not reflect • Persons from a range of real indicators. In the process of countries including countries of monitoring the reasons for the South-East and Central Asia and statistics being incorrect and Africa entered Azerbaijan for a short inaccurate were discovered. These period of time with visa but did not reasons are mainly as follows: return to their countries and continue • There is non-visa regime or to live illegally in Azerbaijan; simplified visa system between • There are serious Azerbaijan and a range of countries. shortcomings in the visa system of the There are also countries of the country. As a result of imperfect state Commonwealth of Independent States of the visa system many aliens and (Former Soviet Republics). From these stateless persons loose their immigrant countries, particularly from Georgia status and obtain illegal status because many people enter the country without do not leave the country. As a result obstacles and live in Azerbaijan. these persons are not taken into Majority of these people did not apply account in statistics; to the appropriate state bodies for • Majority of aliens and stateless registration according to the place of persons who registered according to

36 the place of residence stay in the disbursed labour activity with personal country after expiry of 90 days period, permit has reached 4200. At the same but they do not register again. The time 996 of them are occupied at main reason for that is bureaucracy foreign oil companies. But as we and corruption. These persons also are mentioned above, the information not taken into account in statistics in about foreign companies is not exact. the future. These companies infringe the law and Not all aliens and stateless persons are do not provide statistic information. really hired for implementation of According to the researches made by labour activity. In accordance with the official state bodies, in fact, legislation of the country only those number of migrant workers in the aliens and stateless persons who country is 40 000. But according to the perform hired disbursed labour alternative statistics only the number activities are considered migrant of ethnic Azerbaijani’s coming for workers. labour activity to Azerbaijan from The statistics are kept only Georgia is more than 100 000. regarding the migrant workers who Thus, both official and unofficial perform their labour activity with statistics regarding migrant workers personal permit and working in the do not fully reflect the reality. And official labour sector. These this on its turn creates problems for statistics are not so accurate. Thus, formation of the state policy transnational and a range on regarding migrant workers, national and foreign companies determination quotas, analysis of functioning in the country do not information regarding employees at provide information to the the labour market. appropriate state bodies. Presently, government of Azerbaijan Up to January 1, 2008, 1700 migrant establishes automated migration workers from 65 countries of the information centre with the purpose world have been registered. As a result to determine quantitative indicators of of amendments made to the legislation aliens and stateless persons and their high fines have been determined for real status in the country. Information employers who employ aliens and of this centre will be open for all stateless persons without personal related state bodies. Establishment of permit. Thus, some employers had to this centre and single database will legalize a part of their migrant serve the improvement of coordination workers. That is why the statistics of activity among state bodies and have changed in November 2008. elimination of shortages in statistics. According to the information provided At the same time, these measures by the Migration Department of the taken in the country will not be Ministry of Labour and Social enough for determining real Protection of Population number of statistics regarding migrant workers migrant workers who perform in the country.

37

OUTCOMES OF THE SURVEY

The survey conducted within the The main purpose of the survey was monitoring covered 100 experts. to learn about the impact of migrant These experts are lawyers having workers on labour market 1. Age groups of respondents and the economy of the

35,00% country and the real 30,00% situation of migrant

25,00% 18-24 years workers in the Republic 20,00% old 25-34 years of Azerbaijan. From this 15,00% old 35-44 years point of view, survey 10,00% old 45-54 years consisted of two parts. 5,00% old The first part was related 0,00% to the legal situation of 1 migrant workers and their important position in the public life impact on labour market and the of the country, including advocates, economy of the country. The second practicing lawyers, lawyers working at non-governmental organizations, 2. Classification of respodents trade unions and employment according to gender agencies. The survey has been conducted in the capital Baku, in Ganja – the 32% second large city situated at the north west of the country and the industrial city Sumgayit. Men Among respondents 8,7 % are from 68% Wome n 18-24 age group, 30,4% are from 25-34 age grout, 27,5% are from 35-44 age group, 26,2% are from 45-54 age group, 7,2 % are 55 and older persons. 68 % of respondents part was related to the real situation are men, 32 % are women. of migrant workers and their family Respondents have been offered to members and situation with answer a questionnaire consisting of 9 questions. provision of human rights.

38 an impact of 3. Is the legal basis in the Republic of migrant workers on Azerbaijan sufficient for migrant workers for the labour market conducting labour activity? of the country, it has negative impact on the provision of There is enough employment for 47,4% legal basis 52,6% citizens. Some experts showed the Legal basis is not enough energy sector as a sample. It was mentioned that the transnational The first question was whether companies attract aliens and the legal basis in the Republic of stateless persons to the oil and gas Azerbaijan is sufficient for industry, and this hinders migrant workers for conducting labour activity. 47,4 % of 4. How much is the impact of migrant workers on the labour market of the respondents country? noticed that the There is an impact 5,6% of migrant workers legal basis in the on the labour country is market of the country, but this sufficient for impact is not so migrant workers much to be felt 41,6% 52,8% There is an impact for conducting of migrant workers on the labour labour activity, market of the 52,6 % stated that country, it has negative impact on legal basis is not the provision of sufficient. There Other answers were no other professionals from employment in answers. this sector. 5,6 % of respondents gave other answers, which are that it How much is the impact of is impossible to answer this migrant workers on the labour question because the government market of the country? has no clear statistics, forecasts, 52,8 % of respondents mentioned regulation mechanisms (or they are that there is an impact of migrant very week). workers on the labour market of the country, but this impact is not so To the question about Impact of much to be felt. 41,6% of increase of migrant workers in respondents answered that there is the country to the state economy

39 respondents 5. Is there impact of increase of migrant answered as workers in the country to the state follows:18,6% of economy respondents gave 1,4% Yes there is, increase of 18,6% affirmative answer migrant workers in the and mentioned that country put the state economy into position increase of migrant dependent on the foreign human resources workers in the Yes there is, but it is not enough put the state country put the state economy into position economy into dependent on the foreign position dependent human resources on the foreign 80,0% Other answers human resources. But 80 % of respondents answered that “the respondents gave negative answer ti large amount of migrant workers at this question and mentioned that the labour market of the country increase of migrant workers in the will not increase social expenses of country may not put the state the state”. economy into position dependent on 28,6 % experts answered that “the the foreign human resources. 1,4% large amount of migrant workers at the labour market of 6. May the large amount of migrant workers the country at the labour market of the country increase increases social social expenses of the state? expenses of the 2,8% state”. Just 2,8 % of The large amount of migrant workers at the respondents gave labour market of the other answers. 28,6% country will not increase social expenses of the Other answers were state The large amount of that “the social migrant workers at the expenses of the labour market of the country increases social state will increase expenses of the state 68,6% with increase in Other answers legalization of migrant workers”, of respondents noticed that it is “in all cases the social expenses of difficult to answer this question the state will increase. That is why because there is no correct statistics state shall have special program on state labour market. related to this issue”

May the large amount of migrant The following questions in the workers at the labour market of questionnaire were about rights of the country increase social migrant workers and their family expenses of the state? 68,6% of members.

40 in the country and they 7. At which workplaces migrant workers are are registered as occupied most of all? 12,2% unemployed. 12,2 % of respondents Most of all they are occupied at places gave different answers to which are not 40,5% demanded by local the question, such as population “aliens and staeless Most of all they are occupied at places persons are mainly for which there are focused in the trading no enough local 47,3% human resources sector”, “both cases are Other answers possible”, “they work mainly at foreign According to your opinion at companies”. which workplaces migrant workers are occupied most of all? 40,5 % of respondents answered that “most of all they are occupied at places which are not demanded by 8. What are causes of illegal situation of local population”, majority of the migrant workers? 47,3 % answered that “most of all they are 9,2% occupied at places for which there are no 34,2% Legisletaion is enough local human imperfect resources”. One part of those who gave the Application of legislation is second answer conducted with mentioned in their shortages Other answers additional note that 56,6% they mean large portion of foreigner occupied in the What are causes of illegal oil sector. And although there are situation of majority of the enough local professionals, migrant workers? transnational companies continue to 34,2 % of respondents answered attract foreigners to their activities. that “legislation is imperfect”, 56,6 Some experts show that foreign % answered that “application of human resources are attracted as legislation is conducted with cheap labour force to the renovation shortages”. 9,2 % of respondents of transport infrastructure, gave different answers to this reconstruction works and state that question. Other answers included there are enough human resources such as “imperfect legislation, absence of normal social-economic

41 mentioned both variant 9. Which measures shall be taken to change in their answers. the situation of migrant workers from illegal to legal?

2,6% How the rights protection of migrant Legislation shall be improve d workers and their 41,6% Legislation shall family members have be properly been provided? 27,1 % applied 55,8% Other answers of respondent answered that “the legal basis have been established policy programs, the social policy is for full provision of implemented based on rights of migrant workers and their administrative methods instead of family members, but there are laws”, “employers do not want to shortcomings in the application ensure migrant workers and 10. How the rights protection of migrant pay taxes for workers and their family members have been them”, “it is provided? very difficult o 1,5% The legal basis have been obtain established for full personal 27,1% provision of rights of migrant worke rs and permit for their family members, but aliens and the re are shortcomings in stateless Legislation shall be improved for full persons to provision of rights of conduct labour migrant worke rs and activity” and their family members and 71,4% shorcomings in the etc. Othe r answe rs

practice of the norms”, 71,4 % The answers to the question answered that “legislation shall be “Which measures shall be taken improved for full provision of rights to change the situation of migrant of migrant workers and their family workers from illegal to legal?” members and shortcomings in the were as follows: application practice of the norms 41,6 % of respondents answered shall be eliminated. 1,5% of that “legislation shall be respondents gave different answers improved”, 55,8 % answered that to this question. Among answers “legislation shall be properly given there were “Majority of applied”. migrant workers are in illegal 2,6% experts gave different situation and that is why their and answers. There were those who

42 their family members’ rights are existing legislation is not in favour violated”, “their rights are violate of migrant workers. At the same the same way as the rights or time the majority of migrant majority of the citizen workers”. workers in the country are in such The last question given to the expert situation. In such cases protection of was different. They were asked to migrant workers is conducted with answer the following question: “On all possible means. Just because of which level protection of the it they considered acceptable the migrant workers’ rights is more effective?” second variant. 7,1 % of respondents gave different Three variants have been offered. answers to this question. Among Majority of the respondents - 80,2% them such answers like “there shall think that protection of the migrant be comprehensive approach to the workers’ rights shall be conducted problem. Presently government only on the legal level, i.e. within shall make concessions to the aliens and stateless persons illegally the norms and regulations provided in the existing 11. On which level protection of the migrant regulations. workers’ rights is more effective? Even though 12,7 % of 7,1% respondents 12,7% mentioned that rights of On the legal level migrant On the non-legal workers shall level be mainly Other answers protected on the “non-legal 80,2% level”. conducting labour activity on the In fact, the existing practice has territory of the state and they shall been taken into account in this be legalized with preferential terms, question. Thus it is very difficult to but the legislation shall be seriously applied to migrant workers later on protect on the legal level rights of coming to the country”, “protection the alien or stateless person who is impossible at any level, both illegally entered the country and methods are inefficient” were given. therefore illegally conducts labour activity. In relation to these people

43 Survey outcomes The survey also refutes the recent opinion among governing bodies. The survey conducted among lawyers Some state officials without reference professionally involved in the human to any statistics (as it was mentioned rights protection and playing before, there is no such statistics), important role in the public life of the social-economic research or country did not provide unique outcomes of any monitoring express opinion about the state policy related such opinion that inflow of migrant to the migrant workers, presence of workers has a serious impact over the migrant workers and their family labour market of the country, there is members in the country and about a threat of being dependent on foreign their labour activity at the labour human resources and that large market of the republic. amount of immigrants increases According to the great part of the social expenses of the state. But, lawyers, legislative basis for professional expert lawyers regulation of the status of migrant participating in the survey refute this workers and generally immigrants, opinion and state that the influence is their legal situation, labour activity, minor and there is neither threat of use of human rights and fundamental foreign labour expansion for labour freedoms, access to health care, market nor for economy of the education is sufficiently perfect. But country. The government just has to more experts were against this take certain regulatory measures. opinion. They based upon the fact The main part of experts concluded that shortcomings of the country’s that the rights of migrant workers and immigration policy, lack of full their family members are not totally control over exit from and entry to provided and they think that the country, non-issuance of labour shortages shall be eliminated both in visas are results of imperfect legislation and practice. legislative basis. One more conclusion of the experts From this, we may conclude that, revealed existence of one serious notwithstanding the existence of the problem. Although majority of appropriate legislative basis, there is a experts emphasized that they prefer to need for taking a range of measures. protect rights of migrant workers on Both opinions have been proved in the legal level, in their special opinion the answer to the 7th question of the they noted that it is not so easy. It is question nary. The opinion of those not always possible to help migrant answering to this question who told worker who is deported from the that there is a need for improvement country, illegally dismissed, may not of the existing legislation was not provide access to health care and unfounded. But at the same time, in education for the family members on the 7th question great part of the the legal level. lawyers concluded that the legislation is incorrectly applied.

44

FINAL OUTCOMES AND RECOMMENDATIONS REGARDING THE MONITORING

Particular measures for protection of in the sphere of labour migration. citizens leaving the country for Unfortunately, it shall be mentioned conducting paid labour activity and that in none of the countries the ideal migrant workers entering the country conditions have been created for are necessary to be taken by the meeting needs of migrant workers and governments. There are necessary their family members and provision of international norms for establishment their rights. At the same time, in many of legal basis in this field. These norm of the receiving countries appropriate are both universal and regional. services have been formed for International Labour Organization, conducting regulatory activity and UN International Convention on the dealing with migrants workers’ issues. Protection of the Rights of All Migrant Although appropriate measures are Workers and Members of Their conducted in the Republic of Families, European Convention on the Azerbaijan, it is impossible to add this Legal Status of Migrant Workers, country to the list of countries solving appropriate documents adopted by the problems related to migrant workers. Commonwealth of Independent One of the reasons is that the Republic States, bilateral and multilateral of Azerbaijan till recent years was interstate agreements create human resource exporting country. opportunities for State-parties to these But even in this period, ten thousands agreement to establish national norms ethnic Azerbaijanis came to meeting international standards and Azerbaijan from neighbouring appropriate bodies for implementation Georgia with various purposes and and control over implementation of mainly with the purpose to work. these norms. Presently, dynamic development of the state economy, increase of foreign Both international norms and national capital in the country made this legislation impose obligations on the country attractive for people living in states and the governments for other countries. And this on its turn provision of adequate living posed new tasks before the conditions for migrant workers, government and, generally, before the payment of deserved salary and society of Azerbaijan. These tasks first provision of other rights. For this of all include proper allocation of purpose states shall conduct regulatory foreign human resources, stimulation measures or establish appropriate development of state economy by service bodies for regulation of issues efficient use of their labour and

45 conduction of comprehensive As usual, labour ministries of the measures in direction of providing countries deal with the issues of human rights and freedoms of the migrant workers, although there is also migrant workers and their family different practice. But together with members coming to the Republic of this ministry, ministries of Internal and Azerbaijan. Conduction of these Foreign Affairs also play important measures does not consist only from role in settlement of issues related to creation of the appropriate normative migrant workers. In the Republic of legal basis and formation of the Azerbaijan special department has appropriate bodies. To achieve been established within the Ministry something in this field the potential of of Labour and Social Protection of various state foundations shall be Population to deal with issues related concentrated and coordinated. to the migrant workers. Regulation of the attraction of human At the same time specialized state resources from other countries for body dealing with Migration issues is conducting labour activity, to also functioning in the country. guarantee conclusion of employment In fact, efforts of all state bodies shall agreements reflecting minimum be joined for regulation of the standards for migrant workers, migration issues. But, presently in distribution of necessary information Azerbaijan close mutual activities of among migrant workers, provision of the Ministry of Labour and Social support to them and their family Protection of Population, Ministry of members in the destination country Internal Affairs, Ministry of Foreign and broadening relations and bilateral Affairs, State Committee on Refugees and multilateral cooperation between and IDPs and effective coordination of country of origin and receiving these activities is required to settle the country also in the field of social migration issues and particularly the maintenance and social insurance and problems of migrant workers. formalization of these cooperation by Otherwise, continuation of the existing appropriate agreements is necessary. situation will damage the national During the monitoring we determined interests of the state and continue to that one of the serious causes of create conditions for violation of the inability to resolve problems of rights of migrant workers and their migrant workers in the Republic of family members. Here it is important Azerbaijan is poor coordination to mention that, together with above between institutes. As a result of lack mentioned state bodies, the role of the of coordination and agreed actions ministries of Health and Education between various state bodies, and the Social Protection Fund is presently, majority of migrant workers grate. In Azerbaijan, lack of close arriving to the country are in illegal mutual activity between these bodies situation, although initially they restricts access of migrant workers and entered the country legally. their family members to the education, medical services and social

46 maintenance. It is not occasional that required entered the country without the UN Committee on Economic, providing any reasons and then are Social and Cultural Rights in the looking for job. However, both Concluding observations of the country of origin and destination Committee on Economic, Social and country shall take measures in order Cultural Rights adopted at the 33rd persons who intend to perform labour session of the UN Committee on activity would be prepared while Economic, Social and Cultural Rights entering. on November 8-26, 2004, related to Organization of the protection of the the periodic report regarding migrant workers and their family obligations of the Republic of members must be in the centre of Azerbaijan under the International attention the country of origin and Covenant on Economic, Social and destination country. From this point of Cultural Rights submitted to the UN view for provision of the rights of Committee on Economic, Social and migrant workers and their family Cultural Rights mentioned that the members must be in the centre of Committee states with concern that, attention the country of origin and “according to the article 19 of the destination country. Otherwise, Law on Legal Status of Aliens and attempts of only the host country will Stateless Persons that compulsory not be enough for protection of the education for children which are rights of migrant workers and their not Azerbaijani by birth is not family members. The migrant worker provided” shall start preparing for the labour The access of family members of activity in the destination country, in migrant workers, living without the country of origin. Their provisions registration and performing illegal mostly depend on their preparedness labour activity, to the health care is at arrival to the host country. But, also very restricted. Newly born majority of migrant workers coming children of illegal migrant workers can to Azerbaijan, particularly from not be registered in the polyclinics Georgia are not prepared in any way according to the place of residence. and there is no procedure in that The main reason for that is that in fact country for preparation to these migrant workers are not performance of the labour activity in registered according to the place of the Republic of Azerbaijan. Also as it residence. As a result, children may was mentioned above, although not get necessary vaccination and issuance of labour visa for migrant primary medical assistance. workers is provided in the appropriate As it was mentioned in the monitoring norms of the Republic of Azerbaijan, report absolute majority of aliens and in practice this procedure is not stateless persons presently residing in working. As a result, aliens and Azerbaijan entered the country with stateless persons arriving to the common visa and those from the territory of the Republic of Azerbaijan countries for which visa is not with the purpose to perform labour

47 activity are not prepared and thus even informal sector, the legislation in the if they pass legal procedures while field of labour migration is imperfect, entering the country, starting labour the state policy in this field is not fully activity puts them into illegal situation. formed, the border passage and visa Majority of migrant workers arrive to system has shortcomings create the Republic of Azerbaijan with other conditions for prosperity of the illegal reasons, although their primary sector in the country. Informal purpose is to look for job and perform monopolies attract more and more labour activity. For example, ten cheap labour force to the country and thousands of ethnic Azerbaijani’s exploit them without any arrive to Azerbaijan from Georgian formalization of the employment Republic, obtain a document which relations. lets them reside in the Republic of In general, informal relations between Azerbaijan and then start performing employees and employers became appropriate labour activity. Of course, accepted as rule, and this rule most of in majority of cases these persons who all is related to the migrant workers. perform illegal labour activity later try They informally receive their salary to obtain citizenship of the Republic of and thus evade from payment of taxes Azerbaijan. But in recent years it is and employer does not ensure them. very difficult to obtain citizenship. And this eliminates their social The conducted monitoring ones more maintenance. showed that the migrant labour in the Conclusions obtained as a result of the Republic of Azerbaijan is mainly monitoring require that the whole based in the informal sector and this immigration system in the country brings them to more unprotected including the policy regarding migrant situation, decreases their social workers shall be fully changed. protection and increases social At the same time, it shall be exclusion. Both researches made mentioned that there are also positive within this monitoring and researches circumstances related to the migrant of international organizations make it workers and immigrants in general in possible to conclude that 9/10 of the the Republic of Azerbaijan. These are migrant workers in the country are in mainly the following: the informal sector. As a result it • There are no restrictions both brings to the extreme exploitation, in legislation and practice for migrant marginalization of migrants and their workers to join their family members family members, application of forced • There is no xenophobia labour, non-protection of labour and against them health, which brings to the increase of • No criminal actions committed occupational diseases and injuries. based on nationality (racial The fact that more than the half of the discrimination). labour market is related to the

48

RECOMMENDATIONS

• The procedures provided for work. Organization of such entry of migrant workers to the reception rooms shall be mainly territory of the state and their labour conducted by non-governmental activity shall be simplified and organizations; concretized. At the same time • Regular monitoring shall be simplification of the procedures conducted by the appropriate state shall not bring to the uncontrolled body with the purpose to learn the inflow of migrant workers. That is situation with labour activity of why simultaneously the control migrant workers, their and their system shall also be improved; family members’ access to health • The appropriate executive care, education and legal assistance, authority shall conduct initial situation with provision of their seminars for migrant workers and labour rights in the field of their family members entering the employment. The monitoring shall country. These seminars shall be also cover activity of the dedicated to the legal system of the intermediary structures which country, its history, geography, attract, send or bring migrant traditions, regulations for labour workers to the country and the activity, learning of the state attitude of employers to the migrant language. As it is stated in the workers; legislation, this measure shall be • The simplified procedures taken based on principle of shall be provided for legalisation of voluntariness; the labour activity of migrant • The following measures workers presently working in the shall be take to provide access of country and no duties shall be migrant workers and their family imposed on them for obtaining members to the legal assistance and personal permit. In fact, majority of information: aliens and stateless persons -Provision of access for migrant conducting labour activity shall workers to the free legal assistance obtain personal permit, the other (at the expense of the government) requirements of the law shall be in he necessary cases; applied only to those entering the -for provision of the rights of country later on (related with migrant workers the public obtaining an personal permit); reception rooms shall be established • Measures shall be taken for in regions where they compactly vocational training of migrant

49 workers to increase chances of prevention of criminal actions of migrant workers for employment. unoccupied migrants; Conduction of such training in the • Taking into account that the country of origin for those leaving number of women among migrant the country would also be workers increased in recent years, appropriate. Existence of appropriate measures shall be taken appropriate cooperation between in order prevent these women from country of origin and the country becoming victims of any violence or receiving the migrant workers is human trafficking; necessary to reach this target; • No serious measures have • Taking into account that been taken for raising awareness of migrant workers are less protected aliens and stateless persons who and employers have more want to come to the Republic of opportunities to infringe the laws Azerbaijan for labour activity about against them, conclusion of the labour market of the country. employment agreements in The necessary information base for accordance with requirements of the those who want to come to the law with such persons shall be Republic of Azerbaijan for labour particularly controlled. In case of activity, including appropriate unilateral termination of the legislative norms in various employment agreement by the languages, information about work employer migrant worker shall have places in the country, requirements opportunity to stay in the country (education, specialization, etc.) for for a certain period of time to have these vacations, information about chance to use domestic mechanisms documents necessary for entry to (Court, Human Rights and exit from the country and other Commissioner, etc) to restore information shall be placed at the his/her rights. Migrant worker shall official webpage of the appropriate have right to stay in the country till executive authority organ or at the he/she will exhaust all domestic official webpage of the Ministry of remedies; Foreign Affairs. • Organization of funds based on voluntary payments for migrants who want to leave the country but have no means for that, would be expedient. Existence of such fund might play a positive role in

50

Annexe 1

The information of Migration Office of the Ministry of Labor and Social Protection of Population

The classification of foreigners working in Azerbaijan Republic according their quantity and the country of origin on the basis of employment permission defined by the legislation for the date of 01.01.2008

№ The citizenship of the foreigner Number of foreigners 1 USA 17 2 Germany 24 3 Angola 1 4 Argentine 1 5 Australia 1 6 Austria 3 7 Bangladesh 23 8 Belarus 15 9 Belgium 2 10 Bolivia 2 11 Bulgaria 7 12 Bosnia 3 13 Great Britain 86 14 SAR 2 15 South Korea 6 16 Montenegro 1 17 Check Republic 2 18 China 28 19 Afghanistan 1 20 Algeria 9 21 Philippine 21 22 France 7 23 Georgia 258 24 India 63 25 Netherlands 4 26 Indonesia 4 27 Iran 13 28 Iraq 7 51 29 Spain 1 30 Israel 4 31 Italy 32 32 Cameroon 1 33 Canada 6 34 Lebanon 3 35 Hungary 1 36 Malaysia 59 37 Egypt 1 38 Moldova 6 39 Myanmar 2 40 Nigeria 5 41 Norway 1 42 Uzbekistan 5 43 Pakistan 20 44 Paraguay 1 45 Poland 1 46 Portugal 1 47 Kazakhstan 14 48 Kirgizia 1 49 Romania 6 50 Russia 45 51 Serbia 2 52 Singapore 8 53 Slovakia 2 54 Sudan 2 55 Tajikistan 4 56 Thailand 1 57 Trinidad and Tobago 5 58 Turkey 821 59 Turkmenistan 5 60 Ukraine 12 61 Venezuela 4 62 Vietnam 4 63 Croatia 1 64 New Zealand 1 65 Zaire 1 Total 1700

52 Annexe 2

The information of Migration Office of the Ministry of Labor and Social Protection of Population

The classification of foreigners working in Azerbaijan Republic according their quantity and the country of origin on the basis of employment permission defined by the legislation for the date of 01.01.2009

№ The citizenship of the foreigner Number of foreigners 1 Turkey 2069 2 Georgia 355 3 Great Britain 277 4 India 260 5 Russia 190 6 Malaysia 143 7 China 138 8 Bangladesh 94 9 Iran 88 10 Turkmenistan 82 11 Germany 63 12 Philippine 61 13 USA 55 14 Pakistan 48 15 Italy 43 16 Ukraine 37 17 Kazakhstan 36 18 Others` 328 Total 4367

53

SITUATION WITH PROVISION OF THE RIGHTS OF MIGRANT WORKERS AND THEIR FAMILY MEMBERS IN AZERBAIJAN

LEGISLATION AND PRACTICE

REPORT ON OUTCOMES OF THE MONITORING

54