Discrimination in the Enjoyment of Social and Economic Rights by Ethnic Minorities and Migrants in Russia\2010

05.07.2010
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This report focuses on the situation of migrant workers in general and Roma migrants in particular in Russia, and on the discrimination these two vulnerable groups face in accessing social and economic rights. It is based on information gathered by the NGO ADC “Memorial” with the support of FIDH in St Petersburg and the North-West region of Russia, including complaints received by them and cases brought to court.

The general context is characterised by impunity for violations of the rights of migrants. Migrants are frequently victims of xenophobic assaults, lacking protection from the police and the justice system generally. In some cases the police target migrants for bribes and extortion. States of origin generally do not afford their nationals adequate protection.

Russia ratified the International Covenant on Economic Social and Cultural Rights (ICESCR) in 1973. Violations suffered by migrants and documented by ADC Memorial amount to violations of the general prohibition on non-discrimination (art. 2 ICESCR), the right to work under favorable and just conditions (art. 7), the right to social security (art. 9), the right to an adequate standard of living, including adequate housing (art. 11), the right to the highest attainable standard of health (art.12) and the right to education (art. 13).

Migrants forced into irregularity

Russian migration policy is based on a strict quota system, under which only a limited number of migrants have access to work permits. Since July 2010, migrants providing personal or domestic services can also purchase a “patent” in order to work legally.

This report shows that the burden of administrative requirements and obstacles (including obtaining registration, health certificates, work permits etc.) is such that, instead of obtaining these documents from the FMS (Russian Federal Migration Service), migrants often turn to “intermediary agencies”. ADC Memorial’s investigations demonstrate that many of these firms cheat and exploit migrants, providing false documents, faking registration or failing to deliver services paid for.

Lack of access to economic and social rights

Migrants who are in irregular situations are not only particularly vulnerable to abuse by the police, but are also unable to access social and economic rights. Access to health care, education and many social allowances is conditional on registration of permanent or at least temporary residence.

Abuse by employers and intermediary agencies

Migrants, particularly those in irregular situations, also face abuse and exploitation by employers (confiscation of passports, unlimited working hours, lack of payment of wages, fines). They do not benefit from health insurance or care, despite the fact that they often carry out dangerous work (eg. cleaning snow and ice from roofs). The report documents the increasing practice of “outsourcing” by many employers (including shops etc.): employing migrant workers through intermediary agencies. Such migrants sign agreements with the intermediary agencies, and many have no employment contracts (or even retainer contracts) with their final employers. Many such migrants have sought ADC Memorial’s assistance, finding themselves without recourse when they are abused by their employers. Though in a recent case brought by ADC Memorial to St Petersburg court, the court found that the lack of an employment contract in and of itself does not demonstrate the lack of an employment relationship, it remains very difficult to hold employers accountable in such situations.

Particular vulnerability of Roma migrants

The report shows that Roma migrants in Russia face dual discrimination, as Roma minorities and as migrants. Central Asian Roma (Mugat) and Hungarian speaking Magyar from Ukraine face the same difficulties, with severe violations of their economic and social rights, including their right to an adequate standard of living, their right to adequate housing and their right to health. The slums in which they live generally have no running water, no sanitary services and no electricity. They are frequently targeted by the police, sometimes with the use of violence, and are forcibly evicted. Theyonly have access to emergency health care, and going to hospital puts women at risk of having their children confiscated. Two cases brought to the European Court of Human Rights by ADC Memorial show how Roma are subjected to unlawful detention and inhuman and degrading treatment.

Principal recommendations To the Russian government

 Ratify the UN Convention on the Protection of the Rights of All Migrant Workers and Members  of Their Families, the UN Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, ILO Conventions N° 97 of 1949 and N° 143 of 1975.

Introduce the following changes into legislation and practice to ensure the implementation of social and economic rights, in particular of migrants and ethnic minorities, in the Russian Federation:

o Increase the flexibility of the registration and quota system, including by enabling migrants to legalize their stay on a declaratory basis and to obtain work permits for longer periods (three to five years) with the subsequent possibility of permanent regularisation in the country;

o Exercise strict control over private entities to ensure that they respect the rights of migrant workers, including the right to just working conditions, which areequally favourable to migrants as to Russian nationals;

o Provide economic incentives for companies which seek to hire migrants legally;

o Rigorously enforce the legal requirement for employers to provide written employment contracts to workers, including migrant workers;

o Guarantee the right to equal pay for equal work for migrant workers and Russian nationals;

o Introduce standard procedures for courts to judge employement disputes in cases in which there is no written employment agreement, and shift the burden of proof of the employment relationship;

o Rigorously investigate, prosecute and sanction employers who confiscate passports, withhold wages, force employees to work overtime, or commit other violations of Russian law;

o Introduce mandatory medical insurance for employers of foreign workers and liability for avoiding this obligation;

o Establish a system of recruitment for migrant workers, monitored by the state, NGO’s and trade unions, which ensures respect for the rights of migrant workers, including by controlling the activities of intermediary agencies and ensuring that employment contracts are concluded with the final employer.

o Add a provision to the draft federal law “On education in the Russian Federation” regarding the right of foreign nationals and stateless persons to education and establish the obligation of regional governing bodies to assist in obtaining documents for children who have entered school without them;

o Eliminate the requirement of permanent residence registration for the receipt of social benefits.

To public or private companies operating in Russia

o Act in strict compliance with national and international labour law and fundamental principles on labour standards;

o Immediately cease unlawful and discriminatory practices towards employees (and in particular vulnerable groups such as migrant workers) such as the confiscation of identity documents; employment without written contracts, withholding payment of wages, physical or psychological harassment, etc.

o Companies dealing with intermediary recruitment agencies must act with due diligence to ensure workers referred by such agencies benefit from equal treatment to other employees, in strict compliance with labour law and standards.

Report “Discrimination in the Enjoyment of Social and Economic Rights by Ethnic Minorities and Migrants  in Russia”