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I. MIGRATION FROM UKRAINE FOR EMPLOYMENT WITHIN THE CONTEXT OF GLOBAL MIGRATION PROCESSES

6. THE LEGAL STATUS OF UKRAINIAN MIGRANT WORKERS AND THE STATUS OF OBSERVANCE OF THEIR RIGHTS AND FREEDOMS

Depending on their legal status, all Ukrainian citizens sojourning on the territory of other countries for employment can be divided into several categories:

§ persons who have permits for permanent residence on the territory of a foreign state, which simultaneously entitles them to employment without limit of time;

§ persons who have temporary permits for sojourn and employment;

§ persons who on legal grounds temporarily sojourn on the territory of a foreign state (for medical treatment, study, as tourists or on private business) and work illegally;

§ persons who sojourn on the territory of a foreign state illegally and work there illegally.

The category to which a person belongs determines to a considerable extent his rights and freedoms in a country, such as access to medical aid, pension provision, social security, and the like.

The most protected among the Ukrainian migrants are in the first two categories.

Under a general rule, a permit for permanent or temporary residence in another country means that a person enjoys the same rights as its nationals, of social security included. Judging from experience, such persons do not have any problems in the exercise of their rights, specifically the right to proper terms and remuneration for work, employment guarantees, and the right to medical services, because they usually concluded contracts with employers in writing and are protected by the operative labor legislation of the countries of stay.

The most frequent violations in respect of this category of migrants is the refusal of employers to hire Ukrainian citizens who have permanent residence permits, which automatically entitles them to unhindered employment without limit of time. The largest number of such violations was recorded on the territory of the Russian Federation and Kazakhstan.

For migrant workers who have temporary permits for sojourn and employment in other countries the scope of rights, such as social security or medical services, is usually narrower compared with the rights of the country’s nationals, although the rights can nonetheless be exercised without hindrance.

If labor or other rights are impaired, the person concerned can use all the legal mechanisms of protection up to legal recourse.

An analysis of the appeals addressed to the Commissioner shows that in some countries Ukrainian migrants of this category are plagued by problems.

This is especially true for young women who depart for Turkey and Japan for employment in the entertainment industry, such as nightclubs and restaurants. Although their stay and employment in these countries are legal, the specifics of their occupation frequently make them victims of discrimination and their rights are grossly violated by employers. Among the most widespread violations are coercion to prostitution and nonperformance of a contract’s terms and conditions in so far as it concerns adequate and timely remuneration.

N.Vinogradova and M.Andreyev appealed to the Commissioner on behalf of Anastasia Kh. who in August 2001 departed for Japan with a properly executed contract to work as a dancer in a Tokyo nightclub. After some time Anastasia phoned her relatives to inform them that in violation of the contract terms she was taken to Kanishi, deprived of all documents and a return ticket to Kyiv, and forced to be a stripper. Besides, she was coerced into prostitution, systematically threatened and physically abused.

In response to the appeal, the Commissioner addressed the Ambassador Extraordinary and Plenipotentiary to Japan, Yuri Kostenko, with the request to take measures to protect the rights of Anastasia K. on the territory of Japan and facilitate her return to Ukraine.

The Ukrainian embassy immediately dispatched a corresponding note to the Ministry of Foreign Affairs of Japan, officials of the embassy met with officers of the Tokyo police, and soon Anastasia K. returned home.

Ukrainian citizens who have a right to be legally employed on a temporary basis frequently have to grapple with problems in such countries as Greece, Portugal, Italy, Spain, the Czech Republic and Russia. After the adoption of relevant legislation, in particular in Greece and Portugal, most of the Ukrainian citizens, who sojourned there without legal grounds, were offered the opportunity to legalize their status and formalize their contractual relationships with local employers, thereby gaining the right to legal protection, including the right to have recourse to the protection of Ukrainian diplomatic missions, as well as legal assistance.

More often than not such protection is needed in cases of settling claims against employers for disbursement of unpaid wages, compensations for injuries caused by industrial accidents or the death of migrant workers.

The role of the Ukrainian diplomatic missions in dealing with such issues can be extremely important. In ten months of 2002 alone, they facilitated the recovery of US $624,600 in holdback pay of 183 of our citizens. But frequently the efforts of the diplomatic missions are not enough, especially in claims for damages caused by industrial accidents and death of migrant workers.

Such claims require thorough knowledge of national legislation of the host countries as well as immense effort and time to arrive at a logical conclusion, especially when court proceedings are involved. Since the diplomatic missions in the above-mentioned countries are overloaded with other work and lack sufficient personnel, financial and other resources, consular officials cannot always render comprehensive assistance in executing all documents required for the receipt of compensations. Seeking the assistance of lawyers is more realistic for this purpose.

MP I.Havryliuk addressed the Commissioner on behalf of Mrs.L.Meleshchuk of Stary Sambir, Lviv oblast. The husband of the applicant worked legally with a construction company in the Czech Republic since 1997. He died on March 21, 2002 when performing measurement works. All her claims to the employer to pay damages for the death of her husband were disregarded. In this connection the Commissioner asked the Consular Service Department of the Ministry of Foreign Affairs to help the applicant. In its response the Ministry recommended that she apply to a competent court in the Czech Republic through a Ukrainian legal firm specializing in dealing with such problems.

The cooperation of the Ministry of Foreign Affairs and the specialized lawyer association Injurkolegia can serve as a good example of how the violated rights of migrant workers can be remedied through the association’s partner organizations in other countries.

According to the information provided to the Commissioner for Human Rights by Injurkolegia, there has been an upward trend in cases that require legal intervention. For instance, in Portugal some 500 cases of death of our countrymen were registered in 2000-2002 alone, to say nothing about occupational injuries that are difficult to establish, since the victims are reluctant to inform about them because of elementary ignorance of their own rights, while the employers are equally unwilling to speak out to avoid undesirable contacts with the police. At best the victims can apply for medical aid and occasionally receive negligible cash compensations. But in most cases the employers put up a stiff resistance to avoid meeting their contractual obligations.

In the opinion of the Commissioner for Human Rights, precisely in such situations the protection of rights under civil law should be actively combined with the political and diplomatic influence of the Ministry of Foreign Affairs. Such interaction should be based on precisely formulated principles and government support, financial included, of the law firms (both Ukrainian and foreign) that provide real assistance for the protection of the Ukrainian citizens’ rights abroad.

The opportunities for protecting the rights of Ukrainian citizens can also be extended by using extrajudicial mechanisms of human rights protection, in particular through the intercession of ombudsmen (commissioners for human rights) who operate in more than 100 countries, including in those with the largest number of Ukrainian migrant workers.

There are some obvious advantages of such an institution as the ombudsman – accessibility, flexibility, free assistance, and informal procedure for examining complaints, which makes it possible to gain more effective diplomatic protection. This is confirmed by a number of positive examples of the Commissioner’s cooperation with the Ministry of Internal Affairs in resolving the case of Mr.S.Kudria, who was shot by the Polish police, and of the Ukrain­ian crew of the motor ship Funda in Greece (these cases are discussed in greater detail in the following chapters of the Report).

The Ukrainian Parliament Commissioner for Human Rights concluded an agreement on cooperation with the Commissioner for Civil Rights Protection of the ­Republic of Poland and similar agreements are to be concluded with the ombudsmen of Moldova and Romania for more effective protection of our citizens.

But, as pointed out earlier, legally employed Ukrainian citizens account for a negligible share of migrant workers from our country.

Apart from the mentioned categories of migrants in Italy, Spain, Portugal, Greece and Russia, such a status is the privilege of the most skilled Ukrainian citizens, such as engineers (Iraq), scientists and academic instructors (Mexico), doctors (Libya, Yemen), and programmers (US, Germany) who travel to other countries on the basis of properly executed contracts and other documents.

Most of them formalize their applications through government employment centers or private agencies within the framework of bilateral agreements of employment between Ukraine and these countries.

In response to the Commissioner’s inquiry, the Ministry of Labor and Social Policy informed that to date Ukraine concluded relevant agreements with Belarus, Armenia, Vietnam, Latvia, Lithuania, Moldova, Poland, Portugal, the Russian Federation, and Slovakia (see Annex 3). Corresponding agreements with Azerbaijan, Argentina, Belgium, Greece, Georgia, Iran, Spain, Kazakhstan, Cyprus, Congo, Hungary, the Czech Republic, and Switzerland are in the process of conclusion.

Such agreements are among the most effective mechanisms for protecting the rights of Ukrainian migrant workers.

As a rule, the agreements provide for employment duration from six months to four years.

Some agreements stipulate certain restrictions as to the number of Ukrainian citizens who can be employed for the said period on the territory of another contracting state. In the Agreement between the Government of Ukraine and the Government of the Slovak Republic on Reciprocal Employment of Citizens of March 7, 1997 the yearly quota of Ukrainian citizens ranges from 200 to 1,800 persons, depending on categories of trades and professions. Yet by the information of the Ministry of Labor and Social Policy, this quota is not completely supplied. The reason why rests in the inadequate mechanisms of performance of the said agreement, because the majority of our citizens lack the real possibi­lity to avail themselves of what has been negotiated in their interests.

Agreements on employment abroad also contain important guarantees of compliance with the rights and freedoms of migrant workers, such as full application of the host country’s legislation to migrant workers as to remuneration, pension provision, medical insurance, health insurance, and the like. Besides, employers are obligated to compensate for damages caused by industrial accidents or death of migrants as well as for the expenses for transporting the deceased to their countries of origin.

Also important are the guarantees with respect to the forms and language of labor contracts as well as the mandatory information they have to contain.

Apart from agreements on employment, important guarantees of the migrants’ rights and freedoms are also stipulated in agreements on social security and other special agreements in this area. Today such agreements with states and governments are in effect between Ukraine and Azerbaijan, Belarus, Bulgaria, Georgia, Spain, Estonia, Latvia, Lithuania, Moldova, Mongolia, Russia, Romania, Slovakia, Hungary, and the Czech Republic (see Annex 4). Similar Agreements are to be concluded with Argentina, Brazil, Georgia, Kazakhstan, Netherlands, Russia, Tajikistan, Turkey, and Hungary. A substantial body of multilateral agreements in this area is also in effect within the framework of the CIS countries.

In view of the aforesaid, the Commissioner for Human Rights believes that it is necessary to invigorate the process of concluding bilateral agreements on employment and social security, especially with the countries where the largest number of Ukrainian migrant workers are employed, specifically in Spain, Italy and Greece. What is also needed is to monitor how the already operative bilateral and multilateral agreements are complied with in order to assess their effectiveness and improve the mechanisms of their execution in the interests of Ukrainian citizens. The existing universal and regional mechanisms for protecting migrant workers’ rights should also be used more extensively, especially as concerns speeding up the ratification of the European Convention on the Legal Status of Migrant Workers, 1977.

Back in the year 2000 the Commissioner drew the attention of the Cabinet of Ministers to the need of Ukraine acceding to international legal instruments that establish the basic standards of the rights and freedoms of migrant workers. On February 25, 2000 the Commissioner addressed a petition to the Prime Minister with the request that he consider the possibility of Ukraine ratifying the International Convention on the Protection of the Rights of All Migrant Workers and members of Their Families adopted by UN General Assembly Resolution of December 18, 1990.

After a corresponding analysis, the Cabinet of Ministers arrived at the conclusion that it was too early to ratify the said Convention because of a number of factors, primarily the lack of interest of ratifying it by the EU countries that were the main destinations of the bulk of Ukrainian migrant workers. It was also pointed out that Ukraine’s accession to the Convention would raise certain difficulties in securing the rights of migrant workers (mainly from the developing countries) in Ukraine, in particular as far as budgetary appropriations for their social protection were concerned.

On December 24, 2001 the Commissioner repeated the request about the advisability of Ukraine acceding to the European Convention on the Legal Status of Migrant Workers, 1977, which was more acceptable for the country under the then conditions.

The accession to the said Convention would more adequately protect the rights of Ukrainian citizens working abroad, above all in the States Parties to the Convention, such as France, Italy, Portugal, Netherlands, Norway, Spain, Sweden and Turkey, and in the future, in yet another four countries that signed the Convention – Belgium, Germany, Greece and Luxembourg.

The purpose of this European Convention is to ascertain the status of migrant workers and ensure that in all aspects of life and work they be treated as much as possible in the same way and manner as the nationals of a host country.

The Convention governs the fundamental aspects of a migrant worker’s status – employment, medical examination, professional tests, compensation for travel costs, issue of residence and employment permits, guarantees of family reunification, labor safety, money transfer, social and medical assistance, termination of labor contracts, discharge and repeated employment, and the like.

The Commissioner’s request also emphasized that the European Convention applies only to the migrant workers of the Council of Europe member countries that are parties to this Convention. Ukraine’s accession to the Convention will not require any obligations to the migrants who came to Ukraine from countries (the East, in particular) that are not members of the Council of Europe.

The Cabinet of Ministers supported the initiative of the Commissioner in its response of January 27, 2003 signed by the Deputy Prime Minister of Ukraine. After analyzing the Commissioner’s proposals, the Cabinet of Ministers instructed all central bodies of the executive concerned to launch preparatory work for Ukraine’s accession to the European Convention on the Legal Status of Migrant Workers.

The protection of the rights and interests of Ukrainian migrant workers could also be better sustained by Ukraine’s accession to the relevant instruments elaborated within the framework of the International Labor Organization, such as the Convention Concerning Migration for Employment (No.97) and the Convention Concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (No.143), which set out the main norms for conditions of work, wages, housing, transportation, and social insurance.

Most of the migrant workers are employed without properly executed permits, i.e. illegally. Some of them reside on the territory of other countries on legal grounds, but work illegally. This is practiced in the countries with which Ukraine concluded Agreements on visa-free entry into a host country, in particular Russia, Poland and Kazakhstan. Such persons enjoy all the rights concerning the status of foreigners who stay on the territory of a foreign state.

The overwhelming majority of Ukrainian migrants are illegal persons in the full sense of the word, i.e. they reside and work outside the requirements and protection of the law. Precisely this category suffers the most from the irregular situation. Those who stay in the EU countries are deprived of almost all rights and completely dependent on their employers. Usually, they buckle down to a job under a verbal agreement that, more often than not, is not complied with by the employer when it comes to proper conditions of work, adequate and timely remuneration, social guarantees, and the like.

The Commissioner is receiving numerous complaints by illegal migrant workers who describe how their human rights are violated. Their illegal status – compounded by complete lack of knowledge about the scope of their rights and methods of protection – complicate and restrict the efforts of Ukrainian diplomatic missions to remedy the violations.

Since such migrants do not have properly executed contracts, they are not in a position to have recourse to a court, and any application to official bodies automatically dooms them to deportation from the host country.

As a rule, a non-documented worker has no other choice but to engage in a job that does not take into account his skills and qualification or guarantees him any protection.

Such a situation of things has a logical explanation. An ever-growing number of people in the developed countries refuse to engage in hard, hazardous and dirty jobs even to the point of remaining jobless, because they can count on government social assistance. As more and more young people in the developed countries acquire a higher education, they, accordingly, want to have highly paid and prestigious jobs. Unskilled labor is the lot of those who do no care what job they take up as long as the wages are high. Illegal migrant workers, from Ukraine included, are among this category.

The employers in the host countries are instrumental in enlarging the scope of illegal migration, because illegal labor offers them the opportunity to reduce production costs and flout legislatively established social standards.

Ukrainian migrant workers are hired mostly to perform unskilled jobs at small firms or for individuals. In the private sector they are engaged in harvesting, construction, to care for children and the elderly, and to work in bars and other entertainment establishments.

Some countries attract more women migrants, while others men. Italy belongs to the first category where Ukrainians (over 90% women and almost 40% men, according to sociological surveys) work as domestics or else take care of children and the elderly – traditionally “women’s” jobs, while in Turkey and Japan the demand is in female services in the entertainment industry. To the second category of countries belong Portugal, Spain and Russia where mostly men are preferred to work in construction, services, and agriculture. But such a trend is rather relative, because the market of the developed countries offers a broad range of jobs for both women and men.

Migration of workers from Ukraine to Western Europe tends to acquire the nature of a chain reaction. After a migrant’s successful employment period in one of the above-mentioned countries, his relatives and acquaintances usually join him during the next trip. Small wonder that entire villages from Ternopil oblast can be found on construction sites in Portugal or families from Chernivtsi harvesting oranges in Greece. Occasionally such sporadic trips account for rather stable migration destinations.

A typical migration trend is the egress of young and able-bodied people from 21 to 45 years of age, i.e. the potentially energetic and enterprising who could render substantial benefit to their own country.

Relying on the information received from almost all of Ukraine’s regions, the Commissioner arrived at the conclusion that the population of all of them is involved in the migration processes; people from the western and central regions prefer going to Western Europe, while those from the southern and eastern regions travel to Russia.

As a rule, the conditions of work of Ukrainian migrant workers do not meet minimum standards. A study conducted by the Ministry of Labor and Social Policy in 2000 revealed that over one-third of the migrants work ten hours and more and one-fourth over 12 hours a day. Some migrants even had to work more than 18 hours.

The living conditions they have to put up with can hardly be called worthy of humans, for several persons are made to share one little room or else lodge in crammed trailers on construction sites.

Non-compliance with the terms of remuneration is a typical violation of the migrants’ rights. According to the above study, only 11.6% of the migrant workers had properly executed contracts. For all that, in 27.5% of cases the terms of the contracts were infringed (mostly conditions of work). Employers in the Czech Republic (43% of contracts) committed the largest number of violations. Of those who had worked in that country, 85% stated that they lacked protection against extortion, blackmail and theft, 77% – legal assistance, and 64% – a sense of security. But, as the study points out, the conditions of work in Russia and Poland are much worse than in the Czech Republic.

During a visit to Greece in 2001, the Commissioner learned of cases when migrants, after having worked for a private employer some time without receiving any pay whatsoever, were handed over to the police on the eve of settlement for subsequent deportation.

In such cases the migrants are deprived of all means for subsistence and return to Ukraine; many of them apply to the diplomatic missions that cannot always help them financially.

Mr. and Mrs.Klius applied to the Commissioner to have their son, H.Klius, found and brought home. H.Klius, 1959, departed for the Czech Republic in December 1999 and since then his whereabouts are unknown. His parents wrote: “From people who returned from the Czech Republic in 2000 we learned that our son was living there under horrible conditions after he was beaten and injured and now cannot get out of the country. Please help us, old and lonely parents that we are, reunite with our son if he is still alive.” The Commissioner addressed the Ministry of Foreign Affairs which issued a corresponding instruction to the Ukrainian Embassy in the Czech Republic. The search for H.Klius is still going on.

Yet another painful problem migrant workers have to grapple with abroad is the exercise of their right to medical services.

 The hard labor and psychological stress most of them go through every day result in numerous cases of illness, not to say about facts when they become victims of criminal infringement on their life and health.

The legislation of most countries does not grant temporarily residing aliens equal rights with nationals when it comes to access to medical services, if otherwise not provided for under bilateral and multilateral treaties.

One such agreement was in effect between Ukraine and Poland not so long ago, but through the position of the Ukrainian party the negotiation process on its renewal was, regrettably, suspended (this issue is considered in greater detail in the analysis of migration of Ukrainian citizens for employment in Poland).

Bilateral Agreements on medical services are effective only when they maintain at least approximate migration parity between the two contracting parties. Since the migration flows from Ukraine are predominantly of a one-side nature, the prospects of concluding such Agreements is rather bleak.

As mentioned earlier, the provisions on medical services are secured in the majority of bilateral Agreements on employment and social protection. In particular, in case of illness or an accident of a migrant worker, the employer covers all the attending expenditures. Similar provisions are also stipulated in the overwhelming majority of labor contracts Ukrainian citizens conclude directly with employers.

The problems begin when a labor contract is lacking or when a person resides and works illegally on the territory of another country. In such cases the migrant has to pay for his medical treatment, because his employer is not under any obligation to pay.

Neither can this problem be solved by acquiring an insurance policy, because, as a rule, it is effective only for the period of legal stay in a country and does not apply to illegal migrants.

Absolutely all migrant workers experience constant emotional and psychological stress, as they fear to be detected and deported to their countries of origin. The very fact of their stay on the territory of another country is already a valid reason for their deportation, while their illegal employment is considered as a dual breach of the law.

Therefore, such persons usually avoid contacts with Ukrainian consular posts, because they fear to be persecuted for violating the laws of the host country and apply to our diplomatic missions only in emergency cases.

The situation is compounded by the fact that most of the migrants pay intermediate agencies from US $300 and more for employment abroad, frequently putting in pledge their houses and real estate and running into huge debts in Ukraine. This reason makes them take up any job that is offered.

The overwhelming majority of people who stay and work abroad illegally receive preliminary information about their future country of stay from relatives and friends and frequently decide themselves how to get there either as tourists or through the services of illegal intermediaries. There are facts to assert that entire groups of migrant workers depart the country through the intermediation of criminal groups that engage in trafficking in persons. Those who are lured by promises of good wages abroad frequently do not know what sort of slavery is in store for them. This issue was described and commented on in the First Report of the Commissioner for Human Rights.

A lot of our countrymen also enlist the services of dubious employment or tourist agencies, which under the guise of rendering tourist services also engage in employing people abroad.

According to unofficial data, up to 85% of all potential migrant workers go abroad by tourist visas (predominantly short-term). As a rule, they lack documents for employment, not so say anything about guarantees. The advertisements of such tourist agencies transmit almost one and the same message to the willing: “Travel abroad by a tourist visa and we’ll take care of the rest.” In her appeal to the Commissioner, Maria Ch. of Poltava oblast informed that her son, Olexiy Ch., who went to Italy to work paid a tourist agency in Kyiv a total of US $800 for the service. Once he arrived in Italy, all the promises for employment proved to be a sham and he was left without any means of subsistence.

In some of the host countries, the agents of such intermediaries actually turn their credulous clients into slaves. While legally employed migrants are paid directly by an employer, illegal migrants get their pay through agents who take away 50% of the earnings ostensibly as pay for accommodation, transportation to the workplace, or protection against racketeers and thieves. Such agents have become a real bane for Ukrainian migrant workers in Russia, Poland, the Czech Republic, Portugal and Italy. There have been cases when apart from appropriating wages, the criminal groups resort to murder of the migrants. At every large railroad station groups of Ukrainian criminals wait for new arrivals to demand from them money for the use of territory as it were. An illegal worker will hardly inform the police, knowing too well that he will be deported to his homeland immediately. In some cases representatives of law enforcement bodies use for their own ends the irregular situation of an arrival to receive additional financial benefit.

The information of the Ministry of Labor and Social Policy also proves the gross violations of national legislation on employment by the intermediaries operating in Ukraine. As of July 1, 2002 Ukraine numbered 749 entities that held licenses to act as intermediaries for employment abroad. In the period from 2000 to the first six months of 2002, 454 licenses were revoked, because the majority of these agencies were unscrupulous in complying with established requirements. Among the most serious violation is charging advance fees for employment abroad. After the clients leave the country, the intermediaries are not liable to them for anything. Such facts were brought to the notice of the Commissioner in the petitions of the Lviv oblast residents R.Motsak, V.Honcharsky, R.Pariychuk and A.Savarin. On the basis of these facts the Commissioner initiated an inspection of the activity of the agencies stated in the applicants’ petitions.

In connection with the aforesaid, the Commissioner for Human Rights deems it necessary to exercise constant supervision over compliance with operative legislation and license terms by agencies that mediate the employment of Ukrainian agencies abroad, and also to explain through the mass media what people should know about the work of such agencies and their liabilities to the clients.

It is also necessary to make more stringent the control over tourist companies that under the guise of tourist services frequently act as intermediaries for employing Ukrainian citizens abroad. For this purpose work should be continued on putting in place a legal framework governing inter-state migration and social protection of migrant workers.

One of the important steps in this direction could be the adoption of the Law On Enterprises Acting as Intermediaries for the Employment of Citizens Abroad, which was drafted by MP V.Shybko and is currently under the consideration of the Ukrainian Parliament.

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