International labor migration: features of the Eurasian model

The authors of the article consider the issues of the current state and prospects for improving the regulatory framework of the Eurasian Economic Union and the legislation of the Republic of Kazakhstan in the context of further development of the legal framework for cooperation in the field of labor migration, as well as in the field of integration and migration policy of the countries of the Eurasian Economic Union and the Republic of Kazakhstan.The purpose of the study is to develop proposals for improving the regulatory framework of the EAEU countries and the legislation of the Republic of Kazakhstan in the field of regulation of labor migration, as well as countering its negative consequences such as illegal migration on the territory of this integrational association.The methodological basis of the research consists of traditional general scientific and special legal methods used in comparative law: system-structural, historical-legal, socio-legal and comparative-legal.The authors come to the conclusion that it is necessary to develop and adopt the Law "On Labor Migration" in the Republic of Kazakhstan, which will be aimed at regulating both the departure of citizens of the Republic of Kazakhstan for employment abroad and the attraction of foreign labor to the Republic of Kazakhstan, with all the legal relations arising from these processes.The results of this study will contribute to improve the regulatory framework in the field of legal regulation of labor migration, countering illegal migration and other illegal manifestations, which are largely the result of insufficient regulation of the sphere of labor migration.

Introduction

After the collapse of the USSR, post-Soviet states have embarked on the path of their sovereign devel­opment, and pragmatically seek the most acceptable ways to capitalize on the globalization that they have entered. Upon opening to the rest of the world post-Soviet space remains closely interconnected in the eco­nomic and social context. Visa-free movement of the population between most of the former Soviet republics is a “natural” and humane migration regime for the space, in which families, relatives and compatriots – people who lived in one country called the USSR – were separated by state borders. At the same time, the countries of the region demonstrate significant differences in the rates of economic development, GDP per capita, poverty level and economic opportunities of their citizens [1]. The growing role of socio-economic factors in determining the nature and intensity of migration flows, including the expansion of short-term, labour and undocumented migration [2], is especially pronounced in the territory of the former USSR.

Over time, the former Soviet states, bound by centuries-long history and ties following global trends, directed their efforts towards economic integration, creating the Eurasian Economic Union. The creation of integration associations of states in various regions of the world is associated with the problems of the world community, which has entered a long period of globalization when the ability of nation-states to ensure their sustainable social-economic development and security is objectively reduced, and they cannot be independ­ently resolved by one state. At the same time, scientific justification of new approaches to the joint actions of the member states of integration associations is required, including the Eurasian integration, which may re­sult in the use and development of the competitive advantages of the EAEU member states to ensure their continued sustainable development and security in qualitatively new conditions.

One of the problems that arose on the territory of the EAEU is the problem of migration, including la­bour migration, as well as the problems of its legal regulation, both within the national legislation and the international legal acts of the EAEU.

It should be noted that the problem of labour migration and the rights of migrants is typical and relevant for the whole world community, which has entered the globalization and economic integration processes. According to international experts, globally there are 258 million international migrants [3].

Both historically and at present, migration is determined by the economy. One of the famous laws of migration of Ravenstein was formulated as follows: “Economic factors are the main cause of migration” [4].

According to experts of the UN Economic and Social Commission for Asia and the Pacific (UN ESCAP), labour migration is dynamic and constantly growing... Variable rates of economic growth, deepen­ing regional integration and growing inequality in welfare both within and between countries create powerful incentives to move workers across borders [5].

Today, the agenda of the world community includes the issues of legalizing the migrants’ labour, pro­tecting their legal rights, and forming a regulatory framework in the member states retirement systems. The real situation of the citizens of our countries, the ability to freely work in any country in the world as a whole, and the EAEU, in particular, largely depend on the solutions to these problems. Thus, UN experts note that “...illegal migration creates many problems, both for states and migrants. This can lead to migrants being exposed to various forms of exploitation, forced labour and human trafficking...” [6].

Around 10 years have passed since the creation of the Customs Union in 2010, which grew into the EAEU later in 2014. During this period the EAEU included five states (the Republic of Kazakhstan, the Rus­sian Federation, the Republic of Belarus, the Kyrgyz Republic, the Republic of Armenia) with a total popula­tion of about 184 million people. At the same time, participating countries have accumulated considerable experience in the economic and foreign policy cooperation and coordination in the social and labour sphere. The EAEU member states not only achieved positive results in the field of economic, labour and foreign pol­icy integration but also faced several important, previously little-known problems that have now become topical.

Thus, the “open borders” and the lack of a proper regulatory framework for migrant labour within the EAEU entailed a significant increase in violation of migration laws, as well as the facts of forced labour and human trafficking within the EAEU, especially concerning the environment of labour migrants. It is note­worthy that the economic development of the EAEU countries is relatively different, which is why some par­ticipating countries with a higher level of economic development are “recipients” of labour migrants (the Republic of Kazakhstan, the Russian Federation), and others are “suppliers” (the Kyrgyz Republic).

Additionally, many states main suppliers of labour migrants to the EAEU, are planning their further en­try into the EAEU, having the status of an observer country, such as the Republic of Moldova [7], the Re­public of Uzbekistan [8], the Republic of Cuba[9] and the Islamic Republic of Iran [10], or are moving to join as observer countries, for example and the Republic of Tajikistan [11]. As a result, soon, provided that new members join in, the population of the EAEU can reach 325 million people. These factors indicate that the flow of labour migration within the EAEU will inevitably grow shortly.

Currently, labour migration in the territory of the EAEU is quite spontaneous, since, despite the relative settlement, it needs further legal regulation both within the EAEU and the national legislation of the Repub­lic of Kazakhstan.

All of the above testifies to the relevance and necessity of research in the framework of this article, since its implementation, taking the expected results into account, will further improve the regulatory framework in the field of combating illegal migration and other illegal manifestations resulting from insuffi­cient regulation of the labour migration sphere.

Recent studies of unregulated population migration indicate that illegal migration for labour and other purposes, including from Asian countries, is currently growing, which requires attention from regional poli­ticians. In the last decade, there has also been an increase in the criminalization of migration in the form of lucrative human capital – human trafficking [12].

All of the above necessitates a comprehensive study and consideration of the issues of labour migration as a social phenomenon in the EAEU, the study of methods and techniques for its settlement, as well as methods and forms of counteracting its negative consequences such as illegal migration, forced labour and human trafficking. Additionally, it is necessary to develop recommendations for improving the legislation of the Republic of Kazakhstan in this area, as well as a comprehensive strategy against its negative conse­quences.

Currently in the Republic of Kazakhstan there are no comprehensive studies of the theoretical and prac­tical foundations of integration in the social and labour sphere in the modern period in the Eurasian (post­Soviet) space. Scientific sources reflect the results of the analysis of only certain issues of legal support for cooperation in the field of social and labour partnerships and the provision of labour rights in the member states of the Eurasian Economic Union.

Currently available studies by domestic (A.M. Djorobekova et al.) [13], (Y.A. Buribayev et al.) [14] and foreign (I. Ivakhnyuk) [1], (A.V. Korobkov) [2],(R. King and M. Collyer) [4], (W. Anukoonwattaka and A. Heal) [5], (M.G. Curley) [12], (C.A. Hartwell) [15], (D. Cadier) [16] scientists are devoted to the study of general issues of integration processes, the problems of legal support of mechanisms for the implementation of labour rights, and the fulfilment of the state social function.

All of the above indicates the insufficient study of the problems of legal regulation of labour migration within the EAEU and its negative consequences, as well as the relevance and novelty of this study.

Experimental

The methodological basis of the article is made up of traditional general scientific and special legal methods used in comparative jurisprudence: system-structural, historical-legal and comparative-legal. The systemic-structural approach made it possible to form a holistic view of the subject of study, to identify the multiplicity of relationships of its components and bring them together into a single theoretical system. The use of historical and legal analysis directly followed from the need to study the history of the formation and development of labour migration, forced labour and human trafficking, as well as the protection of social and labour rights in various periods, both in Kazakhstan and abroad. The comparative legal method made it possible to analyze the foreign experience in the legal regulation of labour migration, combating forced la­bour and human trafficking, as well as the implementation and protection of the social and labour rights of workers and compare it with the practice of their application in Kazakhstan, to develop a mechanism for co­operation in the social and labour sphere of the EAEU participants.

The study will apply the doctrinal provisions of the general theory of law, constitutional law, adminis­trative, international, labour, criminal and social security law.

Based on the principle of complexity, the article takes into account both the political and socio­economic aspects of cooperation among the EAEU member states in the regulation of labour migration, the establishment and development of a modern level of legal support for social and labour rights. The analysis of the problems of international legal regulation of the research object carried out in a systematic connection with the study of the problems of organization and activity of intra-national institutions. The area of legal support for the cooperation of the EAEU member states in the social and labour sphere requires such a meth­odological approach to its implementation, in which all regulatory legal acts adopted in this field must un­dergo mandatory examination for compliance with international agreements and obligations of the Republic of Kazakhstan of the relevant draft laws to exclude the autonomous development of the social and labour legislation of the Republic of Kazakhstan without taking into account its international obligations.

Results and Discussion

Legal regulation of the legal status of migrant workers is the most effective way to strengthen the guar­antees of protection of their vulnerability. Accordingly, improving the regulatory framework for the legal regulation of the status of all workers, as well as facilitating and adapting the existing rules for migrant workers to simplified application, is an important condition for further integration of states.

To date, both in the Republic of Kazakhstan and in other EAEU member states, a fairly wide list of le­gal acts aimed at regulating various aspects of labor migration has been adopted. In addition, there are also norms of international legislation, as well as various legal documents of the EAEU in this area. According to the results of the analysis carried out by the authors, it is necessary to recognize the validity of the thesis of the Russian authors: "...we believe it is expedient to designate two levels of legal regulation of labor migra­tion – supranational, or the law of the EAEU, and national, including the legislation of the member states of the Union" [17].

If we pay attention to the supranational level of legal regulation of labor migration, we can see that it accumulates a significant number of legal documents that can be divided into acts of primary and secondary law, by analogy with the generally accepted classification in such an integration association as the European Union.

Among the acts of primary law the founding agreement — the Treaty on the Eurasian Economic Union (Astana, May 29, 2014) [18]; other international agreements within the framework of the EAEU, internation­al agreements of the EAEU with a third party should be mentioned. Thus, acts of primary law are interna­tional treaties, the norms of which have the highest legal force in relation to the norms of acts of secondary law. In turn, acts of secondary law are issued by the relevant institutions of the EAEU member states with the necessary powers: decisions and orders of the Supreme Eurasian Economic Council, the Eurasian Eco­nomic Commission, the Eurasian Intergovernmental Council. These acts are adopted based on the constituent agreement.

In addition, it is proposed to pay attention to the thesis of A.V. Vinnitskiy that "a significant part of the provisions relating to the law of the EAEU are norms of direct action, i.e., they are directly intended to regu­late relations, including with the participation of private individuals and public administration. The other part of the provisions is addressed to the member States of the Union and requires the publication of national leg­islation" [19].

The national level of legal regulation of labor migration contains several legal acts that specify the pro­visions of the norms of acts at the supranational level. In particular, they should include:

1) Laws of the Republic of Kazakhstan: "About employment of the population" dated April 6, 2016 No. 482-V; "About migration of the population" dated July 22, 2011 No. 477-IV; "About the legal status of for­eigners" dated June 19, 1995 No. 2337; "About amnesty in connection with the legalization of illegal labor immigrants" dated July 4, 2006 No. 149.

2) By-laws: Resolution of the Government of the Republic of Kazakhstan dated January 21, 2012 No. 148 "About approval of the Rules for entry and stay of immigrants in the Republic of Kazakhstan, as well as their departure from the Republic of Kazakhstan and the Rules for Migration Control, as well as registration of foreigners and stateless persons illegally crossing the State Border of the Republic of Kazakhstan, illegally staying in the territory of the Republic of Kazakhstan, as well as persons who are prohibited from entering the territory of the Republic of Kazakhstan"; Resolution of the Government of the Republic of Kazakhstan dated December 15, 2016 No. 802 "About approval of the Rules for establishing a quota for attracting for­eign labor to the Republic of Kazakhstan and its distribution among the regions of the Republic of Kazakh­stan, determination of persons whose employment does not require the permission of local executive bodies to attract foreign labor" and other acts.

Thus, it can be stated that labor migration is covered by legal regulation, both at the domestic level and within the framework of integration education. At the same time, the existing legal acts contain a few errors that allow some aspects of labor migration to stay unsettled, which in turn generate a number of negative consequences.

In our opinion, the main problem lies in the unsettled legal status of a migrant worker at both the na­tional and supranational levels, and it entails a chain of complex tasks in the field of legal, social, and eco­nomic development of the sphere of migration for the purpose of labor.

Regarding the national legislation, it should be noted that in the Kazakh legislation there is no norma­tive definition of the term "labor migrant", "migrant worker" or "working migrant".

The term "labor migrant" as "a person who will, is or has been engaged in paid activities in a state of which he or she is not a citizen" [20] is defined in the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which was approved by UN General Assembly Resolution 45/178 of December 18, 1990, which has not yet been ratified.

This term is defined a little differently in the Convention on the Legal Status of Migrant Workers and Members of Their Families of the member States of the Commonwealth of Independent States: "a person who is a citizen of one of the Parties, as well as a stateless person permanently residing on the territory of one Party, lawfully located and legally engaged in paid work on the territory of the other Party, of which he is not a citizen and in which he does not permanently reside" [21].

The Law of the Republic of Kazakhstan dated July 22, 2011 No. 477-IV "About Population Migration" defines the term "labor migration", as: "temporary movement of individuals from other states to and from the Republic of Kazakhstan, as well as within the state for carrying out labor activities" (paragraph 4 of Article 1) [22].

The term "labor migrant" itself, although used in subsequent provisions of the law, is not defined, but this is necessary for a uniform understanding of the terminology used in various branches of law in this area. At the same time, analyzing this term, it is necessary to pay attention to two interrelated and mutually dependent ele­ments, namely, "labor" (working, who works) and "migrant". In turn, we note that the element of "labor" (working, who works) allows us to talk about a person as a participant in labor relations, endowed with the sta­tus of a subject of labor relations. "Labor (working) migrant" is a person who moves from the country of per­manent residence to another country for the purpose of employment with a foreign individual or legal entity.

We believe that in the Article 1 of the Law of the Republic of Kazakhstan "About Migration of the Population" dated July 22, 2011 No. 477-IV, namely, it is proposed to make additions to subparagraph 4-2 of Article 1 of the above Law by clarifying the term "labor migrant" and to state in the following wording: "4-2 labor migrant is "an individual legally moving from the country of permanent residence to another country in which he was engaged, is engaged or will be engaged in paid labor activity for a period specified by an em­ployment contract".

In accordance with the norms of the current legislation of the Republic of Kazakhstan, foreign citizens must obtain a temporary residence permit or registration for legal residence on the territory of Kazakhstan. According to the Decree of the Government of the Republic of Kazakhstan "About the approval of the Rules of entry and stay of immigrants in the Republic of Kazakhstan dated January 21, 2012, No. 148, as well as their departure from the Republic of Kazakhstan", foreign citizens have a period of three days for their re­ceiving party to notify the migration service of their arrival in Kazakhstan. There are several ways to do this: a) using the e-government website; b) through the visa and migration portal; c) by means of a written notifi­cation, appearing at the migration service in person. For citizens of the EAEU member States, there is an exception to this rule provided for by the Treaty on the Eurasian Economic Union (Astana, May 29, 2014), which states that they have a period of up to 30 days from the date of entry to register with the migration ser­vice.

For labor immigrants a temporary residence permit is issued for the duration of a special invitation to work, with the exception of immigrants from the EAEU member states, for whom a temporary residence permit is issued for one year with the possibility of an annual extension but cannot exceed the validity period of an employment contract or a civil contract for the performance of work (provision of services).

The extent of their rights and freedoms on the territory of the host country, in particular, access to med­ical, pension and social security, largely depends on whether individuals have legally entered the listed States. The most protected among migrant workers are those who are permanently or temporarily legally lo­cated on the territory of another country and have a corresponding employment permit.

A permit for permanent residence and employment in the host country, as a general rule, means that this person is equal in his rights to citizens of this state, including in the field of social security. Experience shows that such persons have almost no problems while exercising their labor rights, in particular, the right to appropriate conditions and proper remuneration for work, employment guarantees, as well as the right to medical protection, because such persons, as a rule, conclude a written contract with the employer and are protected by the current labor legislation of the host country.

If the rules of entry and stay of labor immigrants in the Republic of Kazakhstan are not observed, the person will be considered to have entered illegally and their legal status will not be regulated.

As the members of the research mission of the International Federation for Human Rights (Federation internationale des ligues des Droits de l'Homme - FIDH) determined in their review "Labor migrants in Ka­zakhstan: without status and rights", in Kazakhstan, migrant workers whose status is not regulated are con­sidered as: "1. migrants who have entered the territory of the country illegally; 2. who do not have a tempo­rary residence permit (or registration); 3. working without the right to work or for an employer who has not received a permit to hire a foreign employee, even if these migrants have completed all the registration pro­cedures prescribed by law and legally reside in the country" [23].

These categories of labor migrants that are in the zone of increased risk due to the lack of protection by the labor legislation of the receiving party. The risks associated with the employment of migrants include unsatisfactory working conditions, violations by the employer of a preliminary agreement regarding various parameters of the production process, low wages, and so on. In addition, they also need special control of state bodies since they often become the subjects of various offenses themselves. Their frequent commission of illegal actions, as well as their involvement in various unseemly acts, is rooted in the reasons that encour­age them to become illegal labor migrants. The severity of the control forces of the social states to introduce of selection criteria and procedures for deterring migrants are often incentive for illegal migration.

First of all, it is necessary to find out what are the factors of forcing people to migrate to find a job. We believe that this is a whole complex of factors that allow a person to feel dissatisfaction with the material, social, spiritual conditions in which he lives and in the need of changing his place of residence, in search of the most favorable environment. The complex of factors pushing people out of the country of residence can include lack of work, low wages, systematic delay or non-payment, and the like. Sometimes, illegal labor migration has more global reasons due to the political situation in a particular country.

For example, a considerable proportion of migrants, trying to avoid various conflicts occurring in the country of permanent residence, become illegal migrants using this most affordable method of changing their place of residence.

In addition to the factors that determine illegal labor migration, which in fact forces people to "voluntar­ily" leave their country of residence, there are other factors. Particularly, we should not ignore the activities of criminal groups that earn money by importing migrants, trafficking in people for forced labor. And this human trafficking market will grow due to its high profitability and low risk, since the objectively develop­ing situation in this area indicates the weak work of law enforcement agencies to counter this type of crime.

It is well known that today the scale of human trafficking has become global, which is associated with the expansion of communication opportunities and ensuring transparency of borders. The growth of those who want to work in a country with a high level of economic well-being makes it easier to overcome barriers to recruiting people for the purpose of their exploitation.

Thus, the authors propose to identify several conditions that contribute to the growth of demand and supply in the "live goods" trade market and conditionally divide them into:

  • socio-economic (low wages, late payment of wages, poverty, unemployment, underemployment, low or lack of education, illiteracy, etc.);
  • legal (insufficient activity of law enforcement agencies, systematic violation of human rights, gaps in domestic legislation on migration, inadequate legislation, low efficiency of the judicial system, corruption of migration officials, etc.);
  • organizational (poorly organized procedure for legal migration, lack of channels for legal migration, weak and ineffective control of state authorities, lack of proper coordination of executive authorities, etc.);
  • informational (lack of materials for training specialists to identify child and forced labor, lack of in­formation about legal employment opportunities abroad; lack of information about the risks accompanying the process of labor migration; excess advertising and entertainment information about life in the country of arrival, insufficient awareness of people about the consequences of illegal migration, etc.).

These conditions, which determine the growth of human trafficking for the purpose of exploitation, as well as the causes of illegal labor migration, in general, are not exhaustive and stable. Some of them are uni­versal for different states, and often the nature of the reasons encouraging labor migration depends on the level of socio-economic development of states, political well-being and stability, the moral and psychologi­cal climate in society, the level of efficiency of state authorities, etc. It should be noted that the variety of reasons for labor migration is influenced by various factors of objective life, which significantly allows them to change.

As a rule, the desire to migrate for the purpose of employment is caused not only by one reason, but al­so by a combination of factors that make it possible to improve their standard of living by improving materi­al well-being. Therefore, we can safely say that the process of globalization of the world economy, the de­velopment of which significantly increases the formation of the migration motive, is at the basis of all labor migration.

Thus, the authors of the article came to a reasonable conclusion that the determinant of labor migration is proposed to recognize an interconnected set of factors that define the formation of a migration motive and the actions of a potential migrant involved in the process of labor migration.

Conclusions

Today, in the Republic of Kazakhstan, as well as in all the EAEU member states in general, one of the important tasks is to develop a comprehensive program of legal regulation of labor migration, within the framework of which it is proposed to provide for aspects of countering illegal labor migration. We believe that this program should take into account that labor migration is a special type of economic migration, and therefore the measures provided for in it should be aimed at solving socio-economic problems.

We suppose that in the Republic of Kazakhstan it is necessary to develop a Law "About labor Migra­tion" (in some of EAEU countries they have already been adopted: Belarus, Kyrgyzstan), which will be aimed at regulating both the departure of citizens of the Republic of Kazakhstan for employment abroad and the attraction of foreign labor to the Republic of Kazakhstan, with all the legal relations arising from these processes.

 

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Year: 2021
City: Karaganda
Category: Law