Abstract. The article examines the current state and main problems of labor migration regulation in Kazakhstan. The article provides an analysis of the state migration policy; it explores the mechanism for implementing the principle of non-discrimination in relation to labor migrants; reveals the features of the legal regulation of relations with labor migrants.
Legal regulation of labor migration in Kazakhstan has always been rather inconsistent and ineffective. Due to issues with the implementation and compliance of migration laws, undocumented migrants are often pushed into the shadow economy of the country.
Nowadays Kazakhstan focuses on attracting qualified foreign labor to carry out labor activities in the country. In order to protect the internal labor market the Government of Kazakhstan annually sets a quota for attracting foreign labor, which makes it possible to effectively limit and distribute the attracted foreign labor, taking into account the situation on the labor market. Initially, the quota was applied mainly to foreign companies operating in Kazakhstan in order to allow them to attract a limited number of foreign specialists to carry out jobs that require high qualifications. At the same time, in recent years, foreign labor has been actively attracted by domestic employers in the fields such as construction and agriculture. That is why for past 15 years the government quota has included both quotas for attracting skilled specialists and agricultural workers. At the same time, the government is trying to achieve a compromise between meeting the needs of the national economy for qualified labor and protecting the interests of its own citizens in the internal labor market.
In order to increase the efficiency of the state migration policy the government approved a new concept of migration policy for 2017–2021, as well as a program for the implementation of this concept [1]. This clearly indicates the increased attention of the state in relation to migration issues, including external labor migration, which belongs to the category of complex national problems that require taking into account all factors affecting economic security.
Even in the Address of the Head of State to the people of Kazakhstan «Strategy for Kazakhstan's entry into the 50 most competitive countries of the world», the idea was expressed about the need to develop mechanisms to attract highly qualified and professional workers to the country who can work on a permanent basis [2]. In 2017 the Ministry of Labor and Social Protection of the Population of Kazakhstan revised the mechanism for attracting foreign specialists, according to which the attracted foreign workers were divided into four categories: heads and their deputies; heads of structural divisions; specialists; qualified workers [3]. At the same time, the quota is established not as a percentage of the economically active population, as it was
before, but in the context of specific sectors of the economy. This measure was aimed at solving the problem of lack of foreign workers, as well as improving the quality of planning and targeted application of quotas.
Another change concerns labor migrants working on households for individuals. The fact is that earlier migrants of this category were not given quotas. According to the changes that took place in 2017, they were also included in the quota. This measure is aimed at, on the one hand, regulating the number of labor migrants in this category, on the other, formalizing their work and ensuring the protection of labor rights.
The role and responsibility of the akimats in the formation of the quota has been strengthened. We are talking about the planning of quotas by akimats, since they are responsible for local labor markets. The modern practice of forming a quota assumes that akimats, before filling out an application for a quota, create a commission, analyze the market demand for labor, determine the real need for labor and assess the possibilities of meeting it with local labor resources. As conceived by the developers, these tools are designed not to complicate the quota formation procedure, but to make it more applicable and economically feasible for each area. Analysis of migration processes over the past 5 years shows that the import of foreign labor has increased 2.7 times, which is associated with the implementation of large investment projects, as well as the lack of qualified personnel in the domestic labor market. At the end of 2017, more than 22 thousand permits were in force in Kazakhstan [4].
It should be noted that in 2017 the main exporting countries of foreign labor to Kazakhstan were: China - 12,400 people (43%); Turkey - 3,271 people (11.3%); Uzbekistan - 2 256 people (7.8%); Great Britain - 1,243 people, (4.3%); India - 1,226 people (4.2%) [4]. At the same time, within the framework of the Eurasian Economic Union (EAEU), there is a regime of free movement of labor resources across the territory of the member states [5]. Here is another problem connected with the regulation of external labor migration. It is associated with the lack of a clear methodology for statistical accounting of all flows of foreign labor, qualified and unqualified, including those arriving from the EAEU countries.
In general, the procedure for granting permits for the use of migrant labor established in Kazakhstan is based on the priority of gradual replacement of foreign workers with national manpower, including through appropriate investments by the employer. This approach differs from the practice of most industrialized countries, which compete in attracting skilled workers. In majority of those countries the rights of foreign workers expand as the length of their legal stay in the country increases. In addition, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families provide for the right of migrants to free access to the labor market after they have been legally employed in the country for a specified period of time [6]. It should also be noted that the procedure for issuing permits to attract foreign labor to Kazakhstan is complex and extremely time-consuming and costly for the employer. Moreover, the scope of the applicable requirements is growing every year and is becoming even more complicated, which may be one of the reasons for the growing numbers of unregulated labor migration in the country.
The principle of non-discrimination is widely recognized in Kazakhstan, and with regard to working conditions, national legislation does not contain any discriminatory provisions against migrant workers. However, considering external labor migration as a temporary phenomenon and regulating its flows on the basis of issuing permits to the employer leads in practice to restricting the rights of migrant workers in the field of employment, which is expressed in the binding of the migrant worker to one employer. In addition, despite the fact that Kazakhstan has ratified the International Covenant on Economic, Social and Cultural Rights and ILO Convention №87 on Freedom of Association and Protection of the Right to Organize, migrant workers do not have the right to form trade unions and have very limited opportunities to participate in activities of already existing associations of workers.
Labor migrants in Kazakhstan have certain access to services in the field of health care. According to legislation on access to medical services, only legal migrant workers can have access to free medical care in the event of infectious diseases that pose a danger to the population [7]. Migrants from the CIS countries have access to free medical care in emergencies, regardless of their migration status. In other cases, there is a fee for migrant workers to access health care services.
Migrant workers in Kazakhstan do not have the right to access pension and compulsory social insurance systems. This is due to the fact that appropriate opportunities are provided only to persons who have received the right of permanent residence in Kazakhstan. Moreover, the employer in both cases is exempted from the obligation to make appropriate payments for migrant workers. In this regard, it should be noted that the provisions of the current legislation of Kazakhstan regarding the rights of foreign workers to social insurance do not comply with international standards established by the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families [6]. However, with
regard to the right to compensation for harm caused to the life and health of a worker while carrying out his labor duties, migrant workers, in accordance with national law, have the same rights as local workers.
Despite the fact that Kazakhstan is taking certain steps to improve the situation of the rights of migrant workers in the country, the situation with their regulation is not resolved. The number of labor migrants in Kazakhstan today is a question for government officials - data from different government departments vary significantly. Today, illegal migration has moved from a secondary problem to a global one, the scale and possible consequences of the aggravation of which may pose a serious threat to international stability and sustainable development of individual states. The scale of the territory of Kazakhstan and the small size of the population determine the impact of migration problems on the foundations of the national security of our state.
In the overwhelming majority, illegal labor migrants are citizens of neighboring CIS countries who, using the visa-free regime, freely cross the borders and fill jobs that are not in demand among citizens of Kazakhstan, or are used in the shadow sector of the economy.
According to some experts, the scale of illegal labor migration is estimated to be three times higher than the volume of legal, quota-based labor migration. There is a tendency towards an increase in illegal migration to Kazakhstan of the so-called «seasonal workers» from Uzbekistan, Tajikistan and Kyrgyzstan. This is facilitated, on the one hand, by low rates of economic development and a low standard of living, and, on the other, by a high birth rate in these countries. These circumstances force the poor part of the population of these countries to look for work and better living conditions abroad, including in Kazakhstan. On the other hand, employers in Kazakhstan are interested in cheap labor and willingly accept illegal migrants to work, which aggravates the situation on the domestic labor market. Moreover, the country's budget does not receive significant amounts of taxes.
In order to obtain a work permit a labor migrant is forced to look for an employer who would have a permit to hire an immigrant and could register him at the place of temporary residence. Otherwise, a foreign citizen who has legally entered the country automatically becomes an illegally working migrant. In other words, in accordance with legislation, the labor of foreign workers in the country can be realized with the initiative of the local employer and the permission of the state, but not at the initiative of the employee himself. As a result, for the majority of foreign workers it is economically more profitable to work illegally, and it is easier for the employer to pay the fine. The labor of illegal migrants is firmly merging with the shadow economy, and cheap labor is used by unscrupulous entrepreneurs. This circumstance is aggravated by the fact that in practice the majority of immigrants arriving in Kazakhstan on a visa-free basis do not know Kazakh or Russian languages well and are not familiar with their own rights related to labor, and local labor and immigration legislation in the country
Most illegal migrant workers are engaged in low-skilled labor. They work on construction sites (mainly citizens of Uzbekistan), in agriculture in southern Kazakhstan, from March to November (mainly citizens of Uzbekistan and Kyrgyzstan), in markets (mainly citizens of Tajikistan and Kyrgyzstan, to a lesser extent citizens of Uzbekistan), in the service sector (shops, cafes, restaurants) and in private households (as housekeepers).
Every year, the police identify from 80 to 100 thousand foreigners who violate migration laws, of which about three thousand are expelled from the country with a ban on entry for the next five years. Most of the violations are related to work without obtaining the necessary permits. The Ministry of Internal Affairs of Kazakhstan indicates that in 2015, 1,381,681 foreigners were registered with the police, of which only 125,625 people officially declared their purpose of arrival as search of work. The majority of migrants live and / or work without formalizing their status; therefore, the official statistics on migrant workers, carried out by the official bodies, do not take them into account. Currently, there are between 300,000 and 1.5 million illegal migrant workers working in Kazakhstan, which on average makes it possible to estimate their number at at least a million [8].
At the same time, while working outside the legal field, migrants themselves often become the object of criminal acts. Illegal migrant workers can be victims of psychological and physical assault as well as abuse at the hands of their employer. Particular attention should be paid to the situation of housekeepers, whose vulnerability is exacerbated by the fact that they work in isolation and in the absence of witnesses.
Elena Sadovskaya in her article «Labor migration in Central Asia» in the OSCE magazine states that «47.5% of them were faced with the fact that employers refused to sign an employment contract with them, providing them with official legal status, 53% received a salary with a delay, and 17.8% did not receive it at all, 12.5% were forced to do unpaid work, 30.7% had their passports taken away, 41.6% were not allowed to leave their workplace, and 17.8% were denied access to medical services» [9].
Illegal labor migrant are particularly vulnerable to any form of modern slavery, such as forced labor. According to Lilia Khaliulina, a lawyer of «Sana Sezim» (the organization that protects the rights of migrant workers in Shymkent and in the southern regions of Kazakhstan), a huge number of migrant workers from Uzbekistan continue to be victims of forced labor in southern Kazakhstan, in particular in the fields, at construction sites, and in private families. In 2014, the Prosecutor's Office of Kazakhstan emphasized that the number of open court cases related to human trafficking and the number of sentences due to violations of articles of the Criminal Code related to human trafficking are growing every year. Massive violations of labor and social rights of migrants in Kazakhstan are still noted by other researchers and international organizations.
From August 1 to December 31, 2006, the amnesty allowed the citizens of Kazakhstan who illegally used migrant labor to settle their situation for a period of three years. As a result of the amnesty, 164.6 thousand illegal labor migrants were legalized. Including: from the Republic of Uzbekistan - 117,133 people (71.1%), the Kyrgyz Republic - 23856 people (14.5%), the Russian Federation - 10,760 people (6.5%), the Republic of Tajikistan - 4673 (2.8%), others countries - 8164 people (4.9%).
In general, the one-time amnesty helped to regulate the legal status of labor migrants and their social protection, replenish the budget by taxing labor migrants, reduce the shadow sector of the labor market, minimize conditions for corruption, as well as reduce the risk of deteriorating the overall crime situation. With all this, it should be noted that, although legalization measures are quite effective, they are not systemic measures in the field of labor migration and can only reduce the growing pressure of the shadow labor market.
In order to somehow improve the existing situation, the Ministry of Internal Affairs of Kazakhstan has developed amendments to the legislation, legalizing the attraction of labor migrants from the CIS countries by citizens of the republic. The Law «On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Labor Migration Issues» was adopted. Permits will be issued to citizens of countries with which Kazakhstan has agreements on visa-free entry and stay for a period of at least three months. Residents of the CIS countries, except for Turkmenistan, fall under this category (its representatives must apply for a visa to enter). Permits are valid only for work for individuals to meet their personal needs. This procedure does not apply to entrepreneurs. The labor of immigrants who have received a permit under a simplified procedure cannot be used to generate income for the employer. One citizen can attract no more than five labor immigrants [10]. This is enough to meet personal needs, while eliminating the possibility of using this mechanism to legalize foreigners illegally working in construction, trade, services and other fields.
The Code of Administrative Offenses has been supplemented with a provision that provides for the responsibility of the individuals for attracting labor immigrants without a permit or concluding labor contracts with more than five labor immigrants. For the first violation, this entails a fine in the amount of 30 MCI, for a second violation - 50 MCI [11]. Initially, the permit is issued for a period of one to three months, then it can be renewed several times, but the total period cannot be more than one year. A new permit can be issued no earlier than one month after the expiration of the previous one [12]. It is important that the period for which the permit is issued and extended will be determined by the foreigner himself - the migration police officer only needs to check that for the period specified in the application (one, two or three months), an advance payment of individual income tax has been made at the rate of two monthly calculated indicators for each month for which the permit is issued. This arrangement eliminates the potential for corruption in the issuance of permits. This approach, in the opinion of state officials, will allow filling the budget and taking control of migrant workers.
Attempts by the state to reach a compromise between satisfying the needs of the national economy for qualified labor and protecting the interests of the subjects of the internal labor market, in order to ensure the economic security of the country, face a number of problems of a systematic nature. In connection with the spread of labor migration, the state is faced with the problem of illegal migration, which is a worldwide trend. That is why it is necessary to pay attention to foreign experience in regulating migration processes. The high number of illegal migration, characteristic of Kazakhstan, indicates a weak state control over migration processes, which is a threat to the country's economic security.
The lack of a clear record of labor migrants reduces the possibility of economic analysis and forecasting of the foreign labor force in the country. In addition, there is no clear system for analyzing the impact of all flows of foreign labor on social and economic state of the country.
Under the existing conditions of organizing monitoring of labor migration, illegal migration, which significantly exceeds the legal one, practically could not be statistically accounted. This circumstance complicates the task of regulating migration processes based on the economic interests of the state.
New approaches to the management of external labor migration should be aimed at solving the problems of limiting the flows of illegal migration, developing more efficient mechanisms for attracting qualified specialists not to the detriment of the local labor market, as well as creating conditions for the integration of labor migrants.
List of references:
- Decree of the Government of the Republic of Kazakhstan dated September 29, 2017 No. 602 "On approval of the Concept of migration policy of the Republic of Kazakhstan for 2017–2021 and the Action Plan for the implementation of the Concept of migration policy of the Republic of Kazakhstan for 2017–2021" [Electronic resource]. — Access regime: http://adilet.zan.kz/rus/docs/P1700000602
- Address of the President of the Republic of Kazakhstan N. Nazarbayev to the people of Kazakhstan. "Strategy for Kazakhstan's entry into the top 50 most competitive countries in the world: Kazakhstan is on the verge of a new leap forward in its development" [Electronic resource]. — Access regime: http://www.enbek.gov.kz/ru/node/287
- On labor migration, the procedure for allocating quotas, obtaining permits for the import of foreign labor into the Republic of Kazakhstan [Electronic resource]. — Access regime: http://www.enbek.gov.kz/ru/node/592
- Certificate on attracting foreign labor [Electronic resource]. — Access regime: http://www.enbek.gov.kz/ru/node/344757
- The Agreement on the Eurasian economic union: Nur-Sultan 29 May, 2014 [Electronic resource]. — Access regime: http://online.zakon.kz/document/?doc_id=31565247
- International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Adopted by General Assembly resolution 45/158, 18 December 1990 [Electronic resource]. — Access regime: https://www.ohchr.org/EN/ProfessionalInterest/Pages/CMW.aspx
- On public health and health care system, July 7, 2020 No. 360-VI [Electronic resource]. — Access regime: http://adilet.zan.kz/eng/docs/K090000193_
- Kazakhstan says illegal immigration hits 300,000 a year Azer News, 6 March 2013, [Electronic resource]. — Access regime: http://www.azernews.az/region/50561.html]
- Sadovskaia E. Labor migration in Central Asia. [Electronic resource] // website of the electronic journal OSCE. 2016. — Access regime: https://www.osce.org/ru/magazine/250406
- On amendments and additions to some legislative acts of the Republic of Kazakhstan on labor migration Law of the Republic of Kazakhstan dated December 10, 2013 No. 153-V LRK[Electronic resource]. — Access regime: http://adilet.zan.kz/rus/docs/Z1300000153
- Code of the Republic of Kazakhstan on Administrative Offenses dated July 5, 2014 No. 235-V [Electronic resource]. — Access regime: http://adilet.zan.kz/rus/docs/K1400000235
- Labor patent for a wetback // "Kazakhstanskaya Pravda" newspaper, February 19, 2014 [Electronic resource]. — Access regime: https://www.zakon.kz/4604068-trudovojj-patent-dlja- gastarbajjterov.html