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Currently there are more than 40 million people, which are forced to leave their homes: from armed conflict, natural disasters, fleeing ethnic persecution and famine. All of them are de facto refugees with their problems, their plans and hopes for us. It would be wrong to talk about the refugees in the world, without mentioning the refugees who are in the territory of the Central Asian republics, including Kazakhstan.
Most asylum seekers in Kazakhstan and Kyrgyzstan come from neighbouring countries, Afghanistan, Uzbekistan, Russia (mostly Chechens) and China (Uighurs). Asylum requests and a small number of persons of African and Asian countries (Iran, Pakistan, Sri Lanka, North Korea, etc.). For the majority of asylum seekers arriving in Kazakhstan and Kyrgyzstan, the choice of destination — it is a question of reach. Many enter the country without documents, without going through border control, either because they do not have passports, or fear of being arrested by border guards.
Both Kazakhstan and Kyrgyzstan ratified the UN Convention relating to the Status of Refugees of 1951 (» Refugee Convention «) and the 1967 Protocol, as well as other international instruments in the field of human rights, including the International Covenant on Civil and Political Rights and the Convention against Torture, which establish a legal framework to protect the rights of refugees and asylum seekers. Nevertheless, the legislation of both countries violates international conventions, and political and economic considerations, as well as security considerations prevail over the obligations with respect to human.
During a meeting with the FIDH mission authorities of both countries relied on regional agreements, the desire to maintain bilateral relations with neighbouring countries, security concerns and the fight against terrorism to justify actions that violate the rights of asylum seekers and refugees. In Kyrgyzstan, in particular, the decision-making process is also affected by the fear of economic sanctions. In both countries, asylum seekers from Uzbekistan, Russia (Chechens) and China (Uighurs from Xinjiang Uygur Autonomous Region) are not granted refugee status by the state. The only opportunity for these individuals — contact the office of the High Commissioner for Refugees (UNHCR) and if their application is approved, the hope for resettlement in a third country.
asylum deportation migration refugee
1. Lack of protection and vulnerability
Despite the fact that Kazakhstan is a party to the Convention and Protocol Relating to the Status of refugees from 1999, October 2009 legislation on refugee status and protection in Kazakhstan does not exist. Although, according to the Constitution, ratified by Kazakhstan international conventions form part of national law and have an advantage in situations contrary to the provisions in practice in the courts of the Refugee Convention is inapplicable.
In October 2009, was submitted to Parliament a draft law «On Refugees”. All asylum applications will be considered under the new law. However, the bill is far from the international standards, and although its adoption can improve the situation of those persons whom Kazakhstan is currently recognized as a refugee, he is unlikely to change for the better the situation of asylum seekers from the CIS countries and China.
In the absence of the law «On Refugees» , the status of asylum seekers and refugees legal status equal to other foreign nationals , and they are entitled to the same services. According to the expert, with whom the mission met FIDH, refugees and asylum seekers are considered foreign nationals temporarily residing in the country. They are provided with the same level of protection as transit passengers at the airport. In addition, currently in Kazakhstan, there are two different concepts in the context of the treatment of persons seeking asylum — «refugee» and » asylum seekers «. In practice, this distinction makes it possible to exclude persons who have left their country because of repression by the state, of the procedures for obtaining refugee status, in violation of Kazakhstan’s obligations under international refugee law.
The difference between refugee status and political asylum
In accordance with the Law of the Republic of Kazakhstan № 204 -I « On Migration » from December 13, 1997, the term «refugee » is defined in accordance with the Refugee Convention and therefore fall under this definition those foreigners who, because of well-founded fear of becoming a victim persecution based on political opinion , race, religion, nationality, nationality, membership of a particular social group have to be outside the country of his nationality and is unable to enjoy the protection of the country (…) «. In accordance with the Regulations on the procedure for granting political asylum to foreign citizens and stateless persons in the Republic of Kazakhstan from 1996:
«The Republic of Kazakhstan shall grant political asylum to individuals and their families seeking asylum and protection from persecution or a real threat to become persecution in the country of nationality and / or residence for political activity, race, nationality or, for their religious beliefs, as well as in cases of violation of human rights provided by international law.”
Refugee status determination
Refugee status determination procedure regulated by Order № 273 Minister of Labour and Social Protection of 20 November 2007. The competence of the Committee on Migration includes the processing of petitions. Data validation is the Committee of National Security; in their duties also include checking for a criminal record of the applicant and potential links with terrorism. Migration Committee makes recommendations
Two major division of the Commission are located in Almaty and Shymkent, due to the large influx of asylum seekers from Afghanistan in these cities. Distribution Committee consists of representatives of the Committee on Migration, the National Security Committee, an observer from the UNHCR and NGOs. Refugee status is valid for one year. Each year, refugees must apply to the Committee on Migration request for extension of the status, their case is reviewed, and the status of either prolonged or denied in the extension. Persons who refused to renew status are obliged to leave the territory of Kazakhstan.
If they refuse to leave voluntarily, they can be deported. The Committee may also refuse to renew status on the grounds that the applicant » is opposed to the sovereignty and independence of Kazakhstan and wants to break his integrity» or accused / was convicted on charges of terrorism , as well as when he was unable to appear before the Committee within three months .
Decisions concerning refugee status may be appealed to the National Committee on Migration, and then in court. However, the appeal is ineffective because there is no provision under which deportations were suspended pending a decision would have to appeal. In December 2008, the Committee against Torture urged Kazakhstan to ensure that, when “persons whose applications for asylum have been rejected can lodge an effective appeal”
2. Refusal to grant asylum to citizens of the CIS countries and China and the role of UNHCR
«The Republic of Kazakhstan joining the UN Convention on the Status of Refugees and its Protocol, consistently complied with its international obligations properties with regard to refugees. Currently refugee statuses in Kazakhstan have about 600 people who had fled from Afghanistan, Somalia and Ethiopia. «
(Tamara Duisenova, executive secretary of the Ministry of Labour and Social Protection, Kazakhstan, May 17, 2009)
«In Kazakhstan seeking asylum seeker from Russia, China and Uzbekistan but Kazakhstan cannot interfere in the internal affairs of these countries.”
(Habylsayat Abishev, chairman of the Committee on Migration, June 11, 2009)
According to the Ministry of Labour, refugee status in Kazakhstan received 580 577 from Afghanistan, one from Somalia and 2 of Ethiopia. From January 1 to June 1, 2009, the Committee on Migration has considered 28 cases (22 petitions were pending since 2008 and six applications were received in 2009) against 73 people. Of these, two were submitted asylum applications were rejected by 33 people and 38 people still request still being considered.
Refugee status has not received any asylum seekers from CIS countries and China. In practice, Uzbeks, Chechens and Uighurs just do not file an application for refugee status or asylum. According KIBHR “they will not go there, if they know that there is present representative of the National Security Service”
Refugees and asylum seekers cannot legally work. «They often sell something in the market, risking police.» These individuals have difficulty in accessing services. «They don’t have rights to pay for the rent and pay for other expenses”. However, children usually receive a generally school.
3. Abduction, deportation, extradition and intimidation
Both in Kazakhstan and Kyrgyzstan, Uzbek and Uighur refugees and asylum- seekers are kidnapping, extradition and forced return to the country from which they had fled from persecution and where they face a real risk of torture and other grave human rights violations, in violation of international obligations to ensure protection against expulsion (forcible return of people in places where their lives or freedom would be threatened or where they might be tortured). Although some cases have been confirmed by documentary evidence, the total numbers of such cases are unknown. Both countries intelligence services cooperate with their counterparts in neighbouring countries, exchanging information on the whereabouts of asylum seekers and refugees. According to independent experts, with whom the mission met in Kyrgyzstan, «our migration service does not comply with the confidentiality of registration information, although they are obliged to do by law «. UN treaty bodies, including the Human Rights Committee, the Committee against Torture and the Committee on the Elimination of Racial Discrimination have repeatedly called on both countries to respect the principle of non-expulsion.
According to the UNHCR, verified information about the deportation or extradition asylum seekers or refugees from Kazakhstan have been reported since 2005, when in Shymkent were abducted and forcibly returned to Uzbekistan nine asylum seekers. However, people go and place a kidnapping attempt. Uzbek refugees who met with the mission was told that notice was being followed the migration police of Kazakhstan and the Uzbek security services feared intervention. Refugees report that saw representatives of the Uzbek security services at the building UNHCR in Almaty. Uzbek police also participated in the interrogation of refugees and asylum seekers, conducted by the police in Kazakhstan.
There are several cases when authorities issued an order to arrest refugees or asylum seekers, but the intervention of UNHCR and NGOs prevented the extradition or deportation. According to Denis Dzhivagi of KIBHR lately authorities are attempting to prevent the forced return of asylum seekers and refugees. In several cases, the police contacted KIBHR after receipt of the request for extradition, saying, «We know where he is, please bring it to our office so we can remove fingerprints and tell the authorities of his country, that he is under UNHCR protection.” In December 2008, the Committee against Torture expressed concern about the fact “that the current procedures and practices of the State party’s expulsion, expulsion and extradition may expose individuals to the risk of torture.” “The Committee is concerned about credible reports that individuals have not provided Article 3 full protection against expulsion, return or deportation to neighbouring countries for reasons of regional security, including the fight against terrorism. The Committee is particularly concerned about allegations of forcible return of asylum -seekers from Uzbekistan and China, and the lack of information after their transfer to the host country about their conditions, treatment with them and their location in the host country.» The Committee urged Kazakhstan to adopt legislation regulating expulsion, deportation and extradition, in order to ensure fulfilment of the obligations in accordance with Article 3 of the Convention in all cases where a person is expelled, expulsion and extradition, as well as to “ensure that provisions of the Convention have an advantage over bilateral and multilateral agreements on extradition does not guarantee full protection”
4. Asylum seekers and refugees from Uzbekistan — a group at particular risk
FIDH met in Kazakhstan approximately twenty asylum seekers and refugees from Uzbekistan, both men and women who fled from persecution in Uzbekistan, according to them, due to human rights activities, religious activities and practices or activities in these areas of their friends or family members. Fleeing persecution by the police and sometimes torture, they cannot get asylum in Kazakhstan, and their only hope is that UNHCR recognizes them as refugees and resettled to third countries. More they fear the Uzbek security services, which are more or less openly, operate in Kazakhstan, and some of the respondents facing extradition or forcible return to Uzbekistan. Their precarious legal situation is complicated by the extremely difficult financial situation.
Especially the massive influx of asylum seekers from Uzbekistan in Central Asia has experienced the tragic events in Andijan in May 2005 and the subsequent repression. During the crackdowns May 13, 2005 in this city in the Fergana Valley, hundreds of people were killed and wounded. While authorities acknowledge 187 deaths in the report of the High Commissioner for Human Rights, issued in June 2006, states that » it is not excluded — judging by the stories of eyewitnesses interviewed — that the incident escalated into mass murder.» Hundreds of people were arrested and tortured after the demonstration. About 500 asylum seekers have sought refuge in neighbouring Kyrgyzstan, where he subsequently received assistance from UNHCR. Not only was there no independent inquiry into the Andijan events, but suffered repression Uzbek human rights activists and independent journalists who tried to shed light on the events: a few people have been sentenced to long prison terms, and some were forced to leave the country.
The massacre in Andijan led to the European Union imposed sanctions on Uzbekistan (including a travel ban for some top officials of Uzbekistan). Since then, the Uzbek authorities have tried to restore the image on the international scene, taking a number of measures (including the abolition of the death penalty and the ratification of a number of other human rights instruments in 2008). EU sanctions (except for an embargo on arms sales) were dropped in late 2008 after the liberation of six human rights defenders, despite the ongoing persecution and other human rights defenders sentencing.
Recent reforms in the legislation and the ratification of international instruments are not able to have a positive impact on the situation of human rights in country. Participants of the workshop on freedom of the media, organized by the EU in Tashkent in October 2008, came to the conclusion that in this area there has been no positive changes. Although some measures have been taken to combat child labour, children in 2008 were still forced to pick cotton. Continuing arbitrary arrests of human rights activists on trumped up charges, are reported concerning the deterioration of the health of human rights defenders held under held in extremely harsh conditions. FIDH also collected information on the enforcement of human rights defenders and journalists indoors in psychiatric hospitals. October 2009 imprisoned in Uzbek prisons were eight employees Human Rights Society of Uzbekistan, member organization FIDH, all on trumped up charges. Since their detention status of the health of these people has deteriorated significantly, and they do not receive adequate medical care.
In February 2009, the Russian human rights organization «Memorial» has published a list of 1,452 people arrested and convicted in Uzbekistan on religious or political grounds from 1 January 2004 to 31 December 20008. According to the “Memorial”, 94% of Muslims was arrested in the campaign against «Islamic extremism.» At least 359 people have been charged in connection with the party “Hizb ut-Tahrir”, — of involvement in the Andijan events and membership in the movement «Akromian» — that they are members of Tabligh Jamaat.
Harassment has also undergone several Jehovah’s Witnesses congregation and Christian churches. «Memorial» also mentions the names of 30 human rights activists, members of opposition movements 14 and 18 journalists and writers. «Memorial» has collected information on the use of torture in the case of 161, but notes that these figures are clearly underestimated, since torture continues to be systematically applied in prisons. In fact, in May 2005 during the international research mission, FIDH has collected some evidence first hand, confirming that many people get convictions based on confessions extracted under torture. Several human rights NGOs and international bodies, including the European Court of Human were repeatedly drawn attention to this issue.
In November 2007, the UN Committee against Torture expressed concern about » the widespread practice of torture and ill treatment,» including » numerous continuing and consistent with each other routine reports of torture and other cruel, inhuman or degrading treatment or punishment by law enforcement and investigative bodies or at their instigation or with their consent, often to extract confessions or information to be used in the trial.
5. Migration policy in Kazakhstan
Regulatory and legislative framework
* Although Kazakhstan has ratified most international human rights conventions that contain certain provisions that protect the rights of migrants, the country still has not signed the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
* Kazakhstan has not ratified ILO Convention number 97 of 1949 on labour migration and the ILO Convention number 143 1975 Migrant Workers (Supplementary Provisions) .
* Kazakhstan is a party to several regional agreements, in particular with the CIS countries (see Part I.3.V), and has signed bilateral and trilateral agreements with Azerbaijan, Belarus, Kyrgyzstan, Mongolia, Tajikistan and Uzbekistan.
National legal framework
* In response to economic developments in Kazakhstan adopted several new laws and decisions were also amended existing laws. Legal framework governing migrations are very complex. According to the Committee on Migration has about 200 laws and legal acts related to migration.
Basic laws and regulations governing labour migration
About common migration policy:
* Law » On Migration », № 204 -I of 13 December 1997, as last amended by 2002: provides for the control of internal and international labour migration, aims to combat “illegal immigration” and defines the return policy of ethnic Kazakhs (repatriates).
* Law of the Republic of Kazakhstan on Amendments and Supplements to the Law of the Republic of Kazakhstan «On Migration », № 276 -III- SAM of 27 March 2002.
* Labour Code of the Republic of Kazakhstan, № 251 -III, May 15, 2007.
* Concept of Migration Policy of Kazakhstan for 2007-2015, adopted by presidential decree number 339 of 28 August 2007.
* An action plan to implement the concept of migration policy for 2007-2015 in the framework of the program “Nurly Kosh” (mainly for repatriates and internal migrants).
About quotas for migrant workers:
* Government Decree on «Rules determining quotas and permits employers to hire foreign labour force in the Republic of Kazakhstan », № 836 of 19 June 2001 (amended on 17 March 2003 and 14 March 2006).
* Government Decree «Some issues of legal regulation of foreign citizens in the Republic of Kazakhstan » № 136 dated January 28, 2000 (settled procedure of deportation).
* In addition to the provisions contained in the Law “On Migration” of 1997, there are a number of specific regulations on the return of ethnic Kazakhs, including Presidential Decree number 590 of 17 November 2008 on quotas for repatriates in 2009 and Government Regulation number 32 of October 22, 2009 on the allocation of quotas.
On trade unions:
* Although Article 23 of Kazakhstan’s Constitution guarantees the right to freedom of association , the Law number 3 -I « On Public Associations» on May 31, 1996 provides for the right to form trade unions only on the initiative of a group of citizens of the Republic of Kazakhstan (Article 10) . Under the same law, migrant workers can join a union registered only if the charter of union membership provides the opportunity to foreign nationals (Article 11) .
* Law «On Citizenship» Republic of Kazakhstan, № 1017 -XII dated December 20, 1991: According to the general procedure for the acquisition of citizenship, citizenship of the Republic of Kazakhstan may be granted to persons permanently residing in the territory of the Republic of Kazakhstan legally for at least five years, or married to citizens of the Republic of Kazakhstan for at least three years. The Act defines an expedited procedure for obtaining citizenship of Kazakhstan as individuals with certain occupations or qualifications.
* Presidential Decree number 1587 of June 6, 2005 defines a list of occupations and qualifications, which include artists, biologists, doctors, geologists, pilots, navigators, chemists, teachers, etc.
Access to economic and social rights:
* Education: In accordance with the Law «On Education » № 319 -III SAM from July 27, 2007 , the right to education are foreign citizens permanently residing in the territory of the Republic of Kazakhstan , but not temporary migrants . However, there are no provisions and explicitly denied access to education for the children of temporary international migrants.
* Health: Access to health care of foreigners, including migrant workers and their families, is regulated by the Government Resolution № 996 of October 16, 2006, providing access to health care for all migrant workers, without restrictions for migrants who are undocumented and permanent status. Foreign citizens are entitled to free emergency medical care and treatment of the place of residence “if the disease is dangerous to others.” Possession of a visa and registration is not required. Bilateral agreements with Kyrgyz migrants have equal rights with citizens Kazakhstan in relation to access to emergency medical care, and employers are required to provide access to other types of medical care.
* Retirement benefits and social insurance: In accordance with the Law «On pension sessional provision «of the Republic of Kazakhstan № 136 -I dated 20 June 1997 , the right to a pension is granted to people residing in the territory of Kazakhstan. Temporary migrants have no such right. This also applies to social insurance in accordance with the Law “On Compulsory Social Insurance » № 405 -II dated April 25, 2003. This leads to the fact that employers are cheaper to hire migrant workers than citizens of Kazakhstan.
* Liability of the employer for damages to life and (or) health worker: In accordance with Article 164 of the Labour Code with causing harm to life and (or) health worker in connection with the performance of his employment duties the employer is obliged to compensate the damage. This provision applies to temporary migrant workers.
* Housing : In accordance with the Law «On Housing Relations » № 94 -I of 16 April 1997 , only citizens of Kazakhstan can acquire housing and access to social housing or housing benefits . The provision of housing can be discussed in the contract legal migrant worker to the employer.
* Family Reunion: In accordance with Article 22 of the Law » On Migration » and the Government Decree governing the entry and stay of foreign citizens in the Republic of Kazakhstan, as well as Government Decree № 688 dated August 10, 2007, to enter the territory of Kazakhstan, members of the family of a migrant worker must provide proof of availability of funds and to stay out. This provision does not apply to repatriates, as well as citizens of countries with which Kazakhstan has a visa-free regime (Kyrgyzstan, Uzbekistan, Tajikistan, Russia, Belarus, etc.)
Kazakhstan, which has extensive economic resources due to oil and gas reserves, has become one of the main countries receiving migrant workers in the region, most of which comes from Uzbekistan, Kyrgyzstan, China and Tajikistan.
The current migration policy of Kazakhstan significantly restricts legitimate employment, thereby increasing the vulnerability of migrants. Authorities refer to the global economic crisis to justify a reduction in the quota of foreign workers almost doubled; at the same time there is a clear policy preference of the local workforce foreign. The quota system, under which work permits are issued to employers, not the migrants themselves, puts workers at the mercy of the employer, denying them the ability to legalize their status in the country and find another job, in case of violation of their rights. Despite that the two countries have visa-free regime, workers are required to register in the migration service for legal stay in the country, and permanent registration is a condition for receiving welfare.
The legislative framework is so complex that almost deprives migrants of opportunity to work legally. The numbers of illegal migrant workers in Kazakhstan are generally estimated to be between 500,000 and one million, but the official quota for 2009 employment permitted foreign 65,000 employees.
FIDH mission has documented numerous cases of violations of the rights of migrant workers in Kazakhstan, especially those who are involved in agriculture and the construction sector. Migrants without registration and employment contracts are particularly vulnerable to exploitation: long working hours, lack of holidays, confiscation of passports, and non-payment of salaries and sales workers from one employer to another. Corruption of law enforcement agencies, including customs officers and border guards put migrants’ constant risk of deportation and extortion, both in Kazakhstan and Kyrgyzstan. Most of these violations go unpunished.
1) Migration policy of Kazakhstan “Constitution” from 1991
2) “News Today” (2009) “Youldashev — Uzbek’s Muslim immigrant”
3) “Asylum seekers and rights in Kazakhstan” — FINH (2007)
4) “Refugees and difference” — FIDH (2008)