COMMITTEE ON THE PROTECTION OF THE RIGHTS OF MIGRANT WORKERS AND THEIR FAMILIES CONSIDERS THE REPORT OF AZERBAIJAN
18 April 2013
The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families today completed its consideration of the second periodic report of Azerbaijan on its implementation of the provisions of the International Convention on the Protection of All Migrant Workers and Members of their Families.
Presenting the report Parviz Musayev, Deputy Chief of the State Migration Service of Azerbaijan, said the political and economic crisis of the early 1980s and 1990s resulted in the mass migration of citizens out of Azerbaijan to other countries such as Russia, Turkey, Ukraine, United Arab Emirates, Germany and Belarus. In recent years rapid socio-economic development in Azerbaijan had resulted in citizens returning to the homeland and an influx of foreign workers to Azerbaijan, encouraged by the low unemployment rate. Azerbaijan regretted it was not able to apply all provisions of the Convention in the entire territory as 20 per cent of the country had long been occupied by Armenia. Azerbaijan acknowledged its problems but remained committed to achieving full implementation of the Convention.
Committee Experts asked the delegation about Azerbaijan’s draft new Migration Code, the rights of migrant workers, bilateral agreements on migration with neighbouring countries, actions to tackle trafficking in persons including sexual exploitation and forced labour, expulsion measures, and about new systems to deal with undocumented migrants.
In concluding remarks Mehmet Sevim, Committee Member acting as Country Rapporteur, said Azerbaijan’s economy would develop more and more, and the Committee would like to see the implementation of human rights develop even more quickly. Key issues included the definition of migrant workers in the draft new Migration Code, access to justice for undocumented migrants and trafficking.
Abdelhamid El Jamri, Committee Chairperson, commended the State party on the progress it had made at the legislative level and assured it of the Committee, and the Office of the High Commissioner of Human Rights’ technical assistance in implementing the Convention should it be needed.
The delegation of Azerbaijan included representatives from the State Migration Service, Department on Work with Law-Enforcement Bodies, Department on Human Rights and Public Relations, Department on International Law and Treaties, Department on Migration Policy and Legal Support, Division on Social Policy, Labour Inspectorate Service, Ministry of Foreign Affairs, Ministry of Labour and the Permanent Mission of Azerbaijan to the United Nations in Geneva.
The next public meeting of the Committee will take place on Monday, 22 April at 10 a.m. when the Committee will hold its seventh day of general discussion on ‘the importance of migration statistics for treaty reporting and migration policies’. More information can be found here: http://www2.ohchr.org/english/bodies/cmw/dgd22042013.htm
The second periodic report of Azerbaijan can be read via the following link: CMW/C/AZE/2.
Presentation of the Report
PARVIZ MUSAYEV, Deputy Chief of the State Migration Service of Azerbaijan, said the political and economic crisis in the early 1980s and 1990s resulted in the mass migration of citizens out of Azerbaijan to other countries. In recent years, rapid socio-economic development in Azerbaijan, including international projects in energy transportation, improvement of living conditions and the geopolitical position of the country, had resulted in an intensification of migration processes: of citizens returning to the homeland and an influx of foreigners to Azerbaijan. Under the Constitution every citizen had the right to freely leave the country to live and work abroad. There were no restrictions on their return to Azerbaijan. The most popular destinations for Azerbaijani citizens were Russia, Ukraine, Turkey, United Arab Emirates, Germany and Belarus, and they often worked in trade, as well as health, education, law and business. Azerbaijan had bilateral agreements to protect migrant workers’ rights, provide for their social protection, and simplify employment procedures, with the Netherlands, Germany, Republic of Moldova, Kazakhstan, Kyrgyzstan, Ukraine and Belarus. Draft agreements with Russia and Turkey on labour migrants would soon be signed. Azerbaijan attached great importance to cooperation with the European Union in the field of migration, and in 2010 signed the Association Agreement on visa facilitation and re-admission issues. To improve legislation on migration, to learn from international experience and to speed up integration into the European Union, Azerbaijan joined the Budapest and Prague processes which encompass legal migration, asylum, visas and voluntary return.
Foreigners migrated to Azerbaijan for jobs, encouraged by the low unemployment rate (5.2 per cent). Between 2008 and 2012, 212,448 applications were received by the State Migration Service from foreigners and stateless persons for resident and work permits. The State Migration Service offered tools to help incoming labour migrants, including a new website www.migration.gov.az (available in three languages, Azerbaijani, English and Russian), through which migrants could access services, and the Government could compile statistics. Foreigners residing in Azerbaijan were guaranteed all rights irrespective of nationality, including the right to vote after five years residence. The restriction of family reunification was forbidden and family members of any migrant engaged in paid employment in Azerbaijan were entitled to temporary resident permits for the duration of the migrant’s contract. Between 2010 and 2012 over 4,500 temporary residence permits were issued to the families of migrant workers. The National Action Plan on the Fight against Human Trafficking in Azerbaijan 2009 to 2013 featured comprehensive preventative, rehabilitation, reintegration and propagandistic activities. The Anti-Trafficking Department, part of the Ministry of Internal Affairs, carried out further programmes, particularly to protect victims who were provided with protection and assistance on an equal basis as citizens of Azerbaijan. There was one shelter for victims of human trafficking, and between 2009 and 2012 four victims received assistance from the shelter.
Azerbaijan regretted it was not able to apply all the provisions of the Convention in the entire territory of the country as 20 per cent of the territory – the Nagorno-Karabakh region and seven adjacent regions – had long been occupied by Armenia. On February 26, 1992, one of the bloodiest massacres in the history of mankind, the Khojaly Genocide, was perpetrated. As a result of the ethnic cleansing policy carried out by Armenia, over one million Azerbaijanis became refugees and internally displaced persons. In 1993 the United Nations Security Council passed four resolutions condemning the occupation of Azerbaijani territories and demanding the immediate cessation of hostilities and the withdrawal of occupying forces. Today the occupied regions were a shelter for terrorists and a favourable place for the illegal transit of drugs, weapons smuggling, human and child trafficking and transplantation of human organs. Azerbaijan sought a peaceful settlement solution to the conflict based on respect to sovereignty, territorial integrity and inviolability of international recognized bodies. Azerbaijan acknowledged its problems but remained committed to achieving full implementation of the Convention in order to improve conditions for migrants.
Questions from the Experts
MEHMET SEVIM, Committee Member acting as Country Rapporteur for the Report of Azerbaijan, said that the report stated that today Azerbaijan was primarily a country of employment rather than a country of origin of migrant workers. Alongside the economic development, there had been implementation of the Convention and positive developments in the area of human rights, which the Committee welcomed. The Committee would like to first know whether the Convention had been invoked in a national court. The national legislation on migration made no specific reference to “migrant workers” as defined in the Convention: would such a definition be included in the future? The report also referred to a draft migration law which at the time of its submission had been submitted to the Cabinet of Ministers. Could the delegation update the Committee on its status? Did Azerbaijan recognize the competence of the Committee to receive communications from individuals? The Rapporteur asked for more information on the human rights of illegal migrants, and processes of legalization for those people in an irregular situation.
An Expert raised the challenge of preventing trafficking in persons, which was not specific to the region but was a global problem. It was the greatest income earner for organized crime after drug smuggling; trafficking in persons was an extremely lucrative crime. In various regions, such as South America, agreements had been established with several countries to ensure ‘comprehensive security’, including against trafficking. Nevertheless results today were poor, little had been achieved and human trafficking continued to be a source of lucrative income for the cartels, the mafia, and the organized crime bodies. Had Azerbaijan established any agreements with neighbouring countries in order to try to combat trafficking comprehensively? It was not a problem that could be dealt with in an isolated manner: bilateral agreements were essential for any degree of success.
As with many reports, countries had complex situations, and that was seen in Azerbaijan. However, it was good to see that the country was improving and moving forward. Migratory issues were always very broad and complex. Currently there were over 200 million migrants worldwide and an important number of them were undocumented in the countries within which they were working. The Expert asked what programmes were in place to support people wishing to return to Azerbaijan, not only to assist their return but also to incorporate them into a productive life in the country upon their return. For example, was there any technical assistance available for people who want to work in agriculture in the countryside, or in an urban job in the city?
What incentives were in place to encourage expatriate Azerbaijanis to return to the homeland? The more who returned home the better it was for the country, of course? What measures were in place to support them upon their return? How many migrant workers voted from abroad?
An Expert asked about the treatment that a migrant worker and his or her family may receive while they were in transit through the country on their way to a destination in a neighbouring country. How did Azerbaijan make a distinction between asylum seekers, refugees and irregular migrant workers? Separate sources had reported to the Committee that Azerbaijan found it difficult to process asylum applications.
Following a number of studies it had been proven that only a formal consultation framework made the management of migration possible, an Expert said. So did the State party have a formal framework to manage migration in Azerbaijan? If so, did that framework meet periodically to discuss relevant matters? Regarding the right to vote of migrants, the Expert also asked if expatriate Azerbaijanis, in other countries, were eligible to stand for election.
What about the access to education for foreigners living in Azerbaijan? What about public employment, becoming a civil servant or public official, for example. There was hardly any country in the world where foreigners could work for the State: was it the same case in Azerbaijan?
How were the rights of migrant workers – and their rights enshrined within the Convention – disseminated? To what extent did people know about the Convention? The Expert said he would welcome information on how the Ombudsman functioned, and what migration issues he had dealt with?
Response by the Delegation
The delegation thanked the Experts for their careful reading of the report and pertinent questions, which were valuable, and stressed that the new draft Migration Code had been favourably received by the Azerbaijani parliament. From the legal point of view the definitions in the Migration Code would properly meet the definitions required by the Committee.
According to the Constitution of Azerbaijan all international conventions to which Azerbaijan was party to, as had been adopted by referendums, had prevailing status in the courts. Currently the Criminal Code was in compliance with international norms.
An Expert asked whether a person’s legal status could determine their access to the courts, a delegate recalled, confirming that by Constitutional Law any person on Azerbaijani territory had the same rights, on an equal footing, as Azerbaijani nationals. People were allowed access to the courts regardless of the nationality, origin, language of a person, their status, place of birth, type of employment or any other reason. Neither were any of those grounds for discrimination, which was prohibited by law. A joint project with the European Union was on the reform of the justice system, and held open clinics for stateless persons and irregular migrants.
Access to education must be further addressed and improved, a delegate acknowledged. Education and training, as far as international standards were concerned, was something the Government took extremely seriously. The training of trainers must also be improved.
The fight against trafficking was a universal issue that must be tackled carefully and internationally. Being a transit country there was a lot of clandestine migration, crossing the country, and the issue of people trafficking was thus heightened.
Azerbaijan had ratified over 25 bilateral agreements and protocols which were helping them to wage war against the scourge of trafficking. Trafficking, or ‘the trade of people’ was a criminal offence in Azerbaijan. Over 22 people had been charged, eight of whom worked in the context of organized crime. A further 25 people were found to be victims of trafficking. Very strong measures were taken against those criminals.
Together with the Ministry of the Interior, the Ministry of Foreign Affairs took measures regarding more than 3,000 undocumented aliens who did not have a permit to reside in Azerbaijan. Those persons were deported. A National Plan to fight the phenomenon of trafficking was in place. Training for law enforcement personnel, including the police, in detecting trafficking was in place, while over 150 lines had been created for victims to access services. Recently over 455 adolescents were found to be living in ‘at risk areas’ of being trafficked. It would be impossible to vanquish the problem overnight but the Government was doing everything it could to eliminate it.
Regarding work to combat trafficking, a delegate first noted that over 3,800 non-governmental organizations had been registered who worked upon a raft of human rights issues, from the rights of women and children to the rights of migrant workers. Some of those organizations were extremely well known, and were also registered with the United Nations. Together with the Association for the Children of Azerbaijan and other organizations, such as the Offices for the Fight against the Exportation of People, the Government had organized round-tables, workshops and training courses on anti-trafficking measures.
Regarding the rights of migrants in transit through Azerbaijan, a delegate explained that such people had the same rights as migrants who stayed in Azerbaijan. Any foreigner coming to Azerbaijan could stay temporarily either for a short or long period, even if his or her final destination was another country. The person could also work in Azerbaijan. In addition, the delegate explained that as the territory of Azerbaijan was not large, the period given with a transit visa was five days, which was long enough for a person to transit through the country.
A threat to the country was that migrants could carry contagious diseases into Azerbaijan, however, the delegate was pleased to note that the number of contagious diseases for which there was no cure or treatment found in the country had recently been reduced from four to two, as a result of studying and applying international experience and respect paid by Azerbaijan to human rights. If a migrant applying to come to Azerbaijan was found to have one of those contagious diseases for which there was no cure or treatment, he or she would be denied entry. However, if a migrant carrying a contagious disease was already living in the country, this was a sensitive and challenging situation dealt with on a case by case basis. The delegation would be better placed to provide the Committee with more information on the topic at the next review.
There was no restriction on employing foreigners either in the private sector or the sector financed by State budget; there were no restrictions, a delegate confirmed. However, as seen in most countries in the world, a foreigner could not work in the Government or a State department.
A foreigner had the right to appeal to a court regarding any violation of their labour rights. For example, a lawyer made an appeal regarding a case worker in the construction service. A Turkish citizen had been employed illegally by a construction company then was severely injured. The company involved gave him no assistance, and he had no health insurance as he was irregular. A court found in his favour and compensation was paid to the Turkish man by the company. Most of the appeals brought by labour migrants were related to the postponement or non-payment of their wages. Those cases were all invested promptly with all legal obligations fulfilled. In most cases appeals were resolved before they were brought to court. In a case of the violation of labour rights, elimination of those violations was executed by the State.
A delegate provided some statistics on the expulsion of migrants from the country, outlining that the number of foreigners expelled from Azerbaijan by administrative decision from the State Migration Service was 3,710, while 1,174 persons had been expelled by the Ministry of the Interior. In the last four years, 112 persons had been expelled from Azerbaijan following a court decision.
The delegation said there were a large number of undocumented migrants in Azerbaijan, which had created a very challenging situation. Since the establishment of the State Migration Service, several measures had been taken, thus between 2008 and 2012 progress had been made as the citizenship of 5,476 persons had been identified, and passports were given to them by the Government.
Regarding cooperation with neighbouring countries on migration, including Russia and Georgia, a delegate recalled that the cooperation agreements in that field were made on a bilateral and multilateral basis and were based on international human rights instruments. Such agreements had been concluded with Kazakhstan, Republic of Moldova, Ukraine, Kyrgyzstan and Belarus. Further agreements of this type were being developed, particularly with Russia, Turkey and Estonia.
Other agreements on migration and labour had been signed with other countries of the Commonwealth of Independent States, which would include the social rights of migrant workers and the recognition of qualifications. In May 2011 consultations on issues of migration took place between the departments responsible for these issues in Azerbaijan and those of Russia, which would continue. Azerbaijan was also involved in different processes to promote integration and other migration issues with the European Union and other countries.
The Ombudsman of Azerbaijan was selected from three candidates. To be eligible to be a candidate the person had to be a citizen of Azerbaijan, be over 30 years old, have completed higher education, have worked in the field of human rights, and be a person of high moral standing. The candidate should not hold duel citizenship, have any obligations to another State, be a member of the Executive or the Judiciary and he should not have committed any serious crimes. The Parliament would then elect one of the three candidates to the position. Once employed the Ombudsman could not be a member of any political party or civil society organization. He was elected to serve a seven-year term, and could not serve more than two terms. The staff of the Office of the Ombudsman was made up of civil servants, and the Office was one of the highest categories of State bodies that received the highest level of State funding. The law stated that each time the national budget was reviewed the financing of the Office of the Ombudsman could not be lower than the resources allocated in the previous budget; therefore the Office’s budget had to increase annually.
The Office of the Ombudsman received claims and requests from migrants, all of which received a written response. The Office checked and resolved each issue in line with the law. There were a number of locations in Azerbaijan which had particularly high numbers of migrant workers, so the staff of the Office would travel to those locations to meet with migrants, assist them and help resolve their problems. In one case a woman from the Philippines came to Azerbaijan to find work and provide for her family back home. However she lost her passport and found herself in a difficult position. Thankfully the Ombudsman helped her be issued with a new passport, resolved the problems, and assisted her to return home to the Philippines.
A delegate said he was grateful to the Committee for giving Azerbaijan the opportunity to spell out its position in a number of fundamental fields of interest to the Committee. He said that the draft Migration Code had a number of provisions which encompassed the concepts of the Convention on Migrants. As the Committee knew, Azerbaijan’s new draft Migration Code had been adopted and the document had now been sent to Parliament for their approval, a delegate reminded.
The new Migration Code would consolidate many issues that foreigners faced; it would simplify procedures to obtain work permits, and would ensure that any person married to an Azerbaijani citizen would be allowed to work without needing a work permit. Previously migrants who had a permit could work for five years, but then would have to leave Azerbaijan for one year, before returning and applying for another five-year visa. The new Code would overturn that difficulty, allowing migrants to work uninterruptedly. The new Code also had provisions for persons younger than 18 years of age, or persons who had a disease, simplifying the process those migrants had to go through to enter Azerbaijan. The new Code on Migration would also simplify the registration system for foreigners by allowing them to register online through the new e-service; there would be no need for them to go to any other State authority, which would save them a lot of time. Furthermore the registration period would now be free of charge.
The Criminal Code of Azerbaijan, as adopted in 2010, stated that suspects to a crime could be detained but enjoyed the same rights and freedoms as Azerbaijani citizens. A law on the legal status of foreign residents or stateless persons set out that anybody detained or arrested on the territory of Azerbaijan had to be informed of the reasons or grounds for their arrest as well as their rights. Pursuant to the Criminal Code every individual had the right to demand an interpreter (free of charge) to be able to communicate in their own language. That included the right of access to a lawyer. Even if a migrant had no documents to prove their identity, nationality or otherwise, they would still be accorded their human rights.
If an individual was extradited from Azerbaijan and did not have the opportunity to turn to a lawyer or court, yes, there were problems relating to that and such situations did occur. When the request for extradition was made the court sent correspondence to the Migration Service informing them that an individual had been brought to their notice, and the decision on extradition would be deferred. There was a need for the population as a whole to have legal awareness of their rights to enable them to fully enjoy their rights.
Azerbaijan was the third post-Soviet State that had adhered to this Convention, and it spared no effort to carry out dissemination of human rights and raise the legal awareness of the population and migrants of this Convention and their relevant rights. The internet and modern communication technology were used to raise awareness.
Foreigners had the right to healthcare in accordance with international agreements Azerbaijan had entered into with other countries. In State Health Facilities migrants had the possibility of obtaining free healthcare, as requested by the United Nations High Commissioner for Refugees. An electronic health record, possessed by every individual, served as medical notes or a health record for every individual. The system of electronic health record was kept by the Ministry of Health.
Azerbaijan had signed up to over 50 International Labour Organization Conventions which it was bound by. It did not intend to dilute the rights of individuals resident in Azerbaijan.
Follow-Up Questions from the Experts
Experts asked further questions about Azerbaijanis voting from abroad, levels of corruption and what had been done to combat it, about means to help stateless persons, and again seeking an answer as to whether the State party recognized the Committee’s competence to receive individual communications.
Response from the Delegation
Approximately 5,400 people who were irregular migrants in Azerbaijan had been given Azerbaijani citizenship and passports, a delegate was pleased to note. A further 10,000 undocumented migrants had been identified as citizens of foreign countries and provided with the passports of their country of origin. Some of them returned to their country of origin and some obtained the correct permit to allow them to reside in Azerbaijan. Other foreigners in an undefined situation were not expelled from Azerbaijan, and work was underway to help them. Those people enjoyed their rights, including healthcare and education for their children. However, approximately 4,000 foreigners who had obtained work permits had had their permits annulled, because their labour contracts had been terminated, either by the employer or employee.
In 27 countries in which Azerbaijan had missions or embassies, 43 polling boots were set up, from which 10,620 of potential voters living abroad registered to vote.
Measures to combat corruption including a Special Section to Combat Corruption set up in the Office of the Prosecutor. In 2012, following legislative amendments, that Section was granted the powers to investigate cases of alleged corruption. New electronic infrastructure for law enforcement and judicial sectors minimized contact between officials and the public, thus reducing the opportunity for corruption. Azerbaijan engaged closely in international mutual assistance and was party to international conventions on both criminal and civil liability for corruption, and was an active participant in the anti-corruption GRECO Programme. The Vice-President of the GRECO Programme ran a special anti-corruption association of States involved in the fight against corruption; that meeting recently met in India and Azerbaijan participated very actively in it.
PARVIZ MUSAYEV, Deputy Chief of the State Migration Service of Azerbaijan, said the delegation looked forward to receiving the Committee’s recommendations, which Azerbaijan would do its utmost to apply in order to protect the rights of migrant workers and fully apply the Convention.
MEHMET SEVIM, Committee Member acting as Country Rapporteur, thanked the delegation for their cooperation and the constructive dialogue. Azerbaijan’s economy would develop more and more, and the Committee would like to see the implementation of human rights develop even more quickly. Some key issues included the definition of migrant workers in the draft Migration Code; the Rapporteur emphasized that there was still time to change the terms before the Code was passed by Parliament. Access to justice for undocumented migrants and trafficking were other serious issues, while the Committee would like to hear examples of which United Nations Conventions had been invoked in the courts.
ABDEL HAMID EL JAMRI, Committee Chairperson, commended the State party on the progress it had made at the legislative level and assured it of the Committee, and the Office of the High Commissioner of Human Rights’ technical assistance in implementing the Convention should it be needed.
For use of the information media; not an official record