Solicitud directa (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

The Committee notes the information in the Government’s first report. It notes that Albania is still predominantly a country of emigration, reporting little migration for employment to Albania, including illegal employment or irregular migrant workers. The Committee notes with interest the ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families in 2007, and the comprehensive legal framework adopted on migration policies, including the Law on the Emigration of Albanian Citizens for Employment Purposes No. 9668 of 18 December 2006 and the Law on Foreigners No. 9959 of 17 July 2008, and its implementing rules. It also notes that a National Migration Strategy and a National Action Plan have been adopted. The Committee requests the Government to provide a copy of the National Migration Strategy and National Action Plan. Please also provide statistical information, disaggregated by sex and nationality, on migration flows from and to Albania, notably the number of foreign workers lawfully in Albania and those who have entered Albania for employment in an irregular situation, as well as the number of Albanian citizens leaving Albania to seek employment abroad under regular or irregular conditions.

Article 1 of the Convention. Protection of basic human rights. The Committee notes the provisions in the national constitution protecting the fundamental rights and freedoms of both Albanian citizens and foreigners (including articles 16(1) and 18, Chapter II), the right to organize collectively (articles 46(1)) and 49(1)), the right to earn a living by lawful work and the right to organize in labour organizations (article 50). It also notes that section 5(4) of Law No. 9668 grants every Albanian citizen the right to equal opportunities and treatment for emigrating, without discrimination based on race, colour or sex, origin, religious belief, political opinion or social origin. Section 2(1) of Law No. 9959 states that foreigners covered by the law “are treated in conformity with the fundamental human rights and freedoms and international agreements ratified by Albania, while respecting the principle of reciprocity, non-discrimination and treatment no less favourable than Albanian citizens”.

Freedom of association. The Committee notes that section 8(4) of Law No. 9959 recognizes the right to organize of foreign nationals subject to obtaining a residence permit. The Committee draws the attention of the Government to the fact that Article 1 of the Convention refers to all migrant workers, irrespective of their legal status. It also refers to the fundamental human rights contained in international instruments adopted by the United Nations in this domain, which contain some of the fundamental rights of workers, including freedom of association (see paragraphs 296 and 297 of the 1999 General Survey on migrant workers). The Committee requests the Government to take the required measures, where necessary through an amendment to the legislation, to ensure that all foreign workers, including those without a residence permit, can exercise the right to join organizations which defend their interests as workers.

Article 2. Identifying illegal employment and migration in abusive conditions. The Committee notes the provisions of Law No. 9959 of 2008 regarding visas and conditions for their annulment, invalidity and refusal (Chapter IV), as well as the provisions in Chapter VII on the supervision and control of foreigners by the border and migration police (section 91), and the obligation of foreigners to give notice of place of stay and residence (section 93). It notes that section 96(2) requires employers to inform the competent authorities immediately of every foreign citizen whom they employ and for every change in their employment status, such as an extension of the employment contract or its conclusion. The Committee further notes the provisions regarding the prevention and punishment of using false information, including the sanctions imposed on foreigners, in Law No. 9668 of 2006 and Law No. 9959 of 2008, which, according to the Government, are aimed at identifying and reducing illegal employment of migrants. It notes that section 40 of Law No. 9668 of 2006 states that the responsible state authorities, when noticing or receiving information that a private employment agency has placed Albanian citizens abroad through deceptive practices, asks the competent authority to assess the activity of the agency. Finally, the Committee notes that both Law No. 9668 of 2006 (section 12) and Law No. 9959 of 2008 (section 99(1) and (2)) provide for the registration of migrants, which may assist in collecting data regarding irregular and regular migration flows and the illegal employment of migrants. The Committee further notes the Government’s statement that the labour inspectorate is responsible for identifying and reducing illegal employment, and inspects companies employing foreign citizens and private employment agencies conducting mediation activities for employing Albanian citizens abroad. The Committee asks the Government to provide detailed information on the facts found as a result of the application of the above provisions, specifying the number and nationality of migrants illegally employed or subjected to abusive conditions, and the nature of the infringements noted. Please also indicate whether and, if so, how employers’ and workers’ organizations are consulted and are able to furnish information with a view to identifying unlawful migration and the employment of migrants in abusive conditions. The Government is further requested to continue providing additional information on the measures taken to determine systematically: (i) whether there are illegally employed male and female migrant workers in the country; and (ii) whether migrants depart from, pass through or arrive in the country for employment in abusive conditions. Please also provide statistical data, disaggregated by sex and nationality, and other information on the situation of irregular immigration in Albania.

Article 3(a) and (b). Measures to suppress clandestine movements of migrants and illegal employment of migrants, and against the organizers of such movements, as well as against those employing workers who have immigrated in illegal conditions. The Committee notes that one of the objectives of Law No. 9668 of 2006 is to manage emigration processes and prevent irregular migration and human trafficking through the extension of regular emigration channels (section 1(2)(c)). It also notes that section 16(1) of the Law requires responsible state authorities to prevent and take all necessary measures to eliminate trafficking and smuggling of Albanian citizens for employment purposes. Subsection 4 provides for policies related to the protection of and assistance to victims of trafficking. The Committee is aware that the Government has implemented a National Strategy against Human Trafficking (2005–07) and that a new National Strategy to Combat Human Trafficking and a National Action Plan for 2008–10 have been adopted. The Government has also concluded bilateral agreements with the Governments of Greece and Italy regarding migration. The Committee asks the Government to provide additional information on the measures taken under the National Migration Policy and the related National Action Plan, as well as the National Strategy to Combat Human Trafficking and the National Action Plan 2008–10: (i) to suppress clandestine movements of migrants for employment and illegal employment of migrants; and (ii) against the organizers of illicit or clandestine movements of migrants for employment and against those who employ workers who have immigrated in illegal conditions, and on the impact of such measures.

Article 4. Measures to establish systematic contact and exchange of information with other States. The Committee notes that section 16(2) of Law No. 9668 of 2006 provides for cooperation between Albania and host countries on the coordination and harmonization of legal instruments for the prevention and reduction of the trafficking and smuggling of Albanian citizens for employment purposes. The Committee notes that the Office of the National Anti-Trafficking Coordinator (ONAC) holds meetings with neighbouring countries to enhance regional cooperation. The Committee asks the Government to provide information on the practical application of section 16(2) of Law No. 9668 of 2006, and on the activities and their results of the Office of the National Anti-Trafficking Coordinator to establish systematic contact and exchange of information with other States. Please also provide information on any other measures taken to establish systematic contact and exchange of information on measures to suppress clandestine movements of migrant workers and the illegal employment of migrants, and against the organizers of such activities.

Article 5. Prosecution of the authors of labour trafficking. The Committee understands that the Criminal Code was amended in 2008 to strengthen the legal framework for the criminal prosecution of trafficking in human beings. The Committee requests the Government to specify whether the authors of labour trafficking can be prosecuted whatever the country from which they exercise their activities, and whether any arrangements on the national or international level have been made in this regard. Please indicate relevant legislative provisions in the Criminal Code, as well as other relevant legislation, including the applicable sanctions. Please provide information on any measures taken in the context of the National Strategy to Combat Human Trafficking and the National Action Plan 2008–10 in this regard, as well as information on the number of cases registered and prosecuted by the Office of Serious Crimes, and the number of convictions of authors of labour trafficking.

Article 6. Provision in the legislation for the effective detection of the illegal employment of migrant workers and effective administrative, civil and penal sanctions in respect of illegal employment and organizing clandestine movements of migrants. The Committee notes that the labour inspectorate is responsible for applying the labour legislation. It also notes that pursuant to section 10(2) of Law No. 9668 of 2006, entering into an irregular situation as well as the carrying out of criminal acts and contraventions in the host countries are considered punishable acts according to the provisions in section 297 of the Criminal Code. It notes that pursuant to section 8(1)(e) and (2) of Law No. 9959 of 2008 a person can be declared undesirable and therefore refused entry or stay in Albania for not less than ten years when involved in trafficking in human beings or illegal border crossing into or through the Republic of Albania. Section 104(gj) imposes a fine on an employer or employee who enters into a work relationship illegally, violating provisions defined by the Law and its implementing legislation for its implementation or for the employment of foreigners. The Committee requests the Government to provide additional information on the nature of the administrative, civil and penal sanctions applicable to persons illegally employing migrant workers, or persons organizing the movements of migrants for employment in abusive conditions or knowingly providing assistance to such movements, whether or not for profit, including a copy of the relevant legislative provisions. Please provide copies of relevant reports or summaries on the activities of the labour inspectorate (number of cases, infringements registered, sanctions imposed, etc.). Please also provide information on the number and nature of infringements noted and sanctions imposed against those organizing clandestine movements of migrants.

Article 7. Consultations with the social partners. The Committee notes the Government’s statement that discussion with all interest groups is part of the national legislative practice prior to approval of legislation. Recalling that workers’ and employers’ organizations shall be consulted in regard to the issues covered by the Convention, the Committee requests the Government to take the necessary measures to involve the social partners in the legislative and practical initiatives designed to detect, eliminate and prevent migration in abusive conditions and the illegal employment of migrant workers.

Article 8(1) and (2). Right to remain in the country after loss of employment. Right to alternative employment, retraining and relief work. The Committee notes that pursuant to section 64(2) of Law No. 9959, unemployment does not constitute a sufficient reason to annul a work permit, except when the period of unemployment continues for more than: (a) three months within a 12‑month period for holders of an employee’s residence permit who have legally exercised activity as an employee or a self-employed person in the Republic of Albania for fewer than three years; or (b) six months within a 12-month period for holders of an employee’s residence permit who have legally exercised activity as an employee or a self-employed person in the Republic of Albania for three years or longer. The Committee requests the Government to indicate the legislative provisions and other measures taken to ensure that migrant workers who have lost their employment enjoy equal treatment with nationals in respect of guarantees of security of employment, the provision of alternative employment, relief work and training, in accordance with Article 8(2) of the Convention. Please also indicate the effect of the loss of their employment on the legal situation of seasonal workers who legally reside in the country.

Article 9(1) and (2). Equality of treatment of migrants in an irregular situation. The Committee notes that the Government’s report does not provide any information on the measures taken to give effect to this Article of the Convention. The Committee notes that section 78(1) of Law No. 9959 of 2008 provides for the right to appeal an expulsion order to the court of first instance within 15 days of the date of receiving notification in writing of the order. The decision of the court may be appealed within five days to the respective court of appeal, which examines the case with priority. The Committee requests the Government to provide information, including reference to the relevant legislation, on the measures taken to ensure that irregular migrant workers enjoy equality of treatment with regularly admitted and lawfully employed migrants in the country in respect of the rights arising out of past employment, as regards remuneration, social security and other benefits. The Committee further requests the Government to provide information on any cases concerning breaches of equality of treatment brought before courts of law and the final decisions handed down, and to indicate whether migrant workers contesting the expulsion are permitted to remain in the country for the duration of the case.

Article 9(3). Costs of expulsion. The Committee notes that section 76(4) of Law No. 9959 of 2008 provides that when neither the foreigner who is to be expelled nor the person who invited him or her is financially able to pay the expenses of the foreigner’s return to the destination country, the cost of travel will be given as an advance loan by the local border and migration police to be repaid by the person who invited him or her or by the employer, if the foreigner came on the basis of a work contract. The Committee wishes to draw the Government’s attention to paragraph 310 of its General Survey of 1999 on migrant workers, in which it indicates that: (a) if the migrant worker is in an irregular situation for reasons which cannot be attributed to him or her, the cost of his or her return, as well as the return of family members, including transport costs, should not fall upon the migrant; and (b) if, on the contrary, the migrant worker is in an irregular situation for reasons which can attributed to him or her, only the costs of expulsion may not fall upon the migrant. The Committee invites the Government to take adequate steps to bring the legislation into line with the Convention, and to report on the progress made.

Article 16(1) and (3). The Committee notes that Albania has recourse to Article 16(1) and has accepted only Part I (Migration in abusive conditions) of the Convention. The Committee notes the brief information in the Government’s report regarding Article 11 (definition of “cross-border employment” under section 3 of Law No. 9959 of 2008), Articles 12 and 14 of the Convention. The Committee draws the Government’s attention to the fact that information requested with respect to Article 12 concerns information on measures to be taken to implement a national policy on equality of opportunity and treatment between Albanian citizens and migrant workers lawfully in Albania, rather than information on measures taken to protect the rights of Albanian migrant workers abroad. The Committee requests the Government to provide full information regarding the position of its law and practice in regard to Articles 10, 11, 12, 14 and 15 of the Convention (Part II), the extent to which effect has been given, or is proposed to be given, to these provisions and the reasons for which it has not yet included them in its acceptance of the Convention.

Parts III, IV and V of the report form. The Committee notes that the Department of Border Control and Migration of the Directorate General of the State Police, the Consular Directorate of the Ministry of Foreign Affairs, the Directorate of Migration Policies in the Ministry of Labour, Social Affairs and Equal Opportunities, and the State Labour Inspectorate are entrusted with the implementation of the legislation and policies applying the Convention. The Committee also notes the Government’s statement that there have not been any court decisions regarding matters relating to the Convention which, according to the Government, is being applied in a satisfactory manner. So that the Committee can assess fully how the Convention is being applied in practice, the Committee would be grateful if the Government would supply information on the specific activities carried out by the competent authorities, including copies of inspection reports and reports on contraventions of the legislation, to give effect to the provisions of the Convention. Please also provide statistical data disaggregated by sex and nationality on migration flows from and to Albania, as well as copies of any relevant studies or surveys that have been undertaken on any of the matters referred to in this Convention.