Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families
Concluding observations on the second periodic report of Kyrgyzstan *
1.The Committee considered the second periodic report of Kyrgyzstan at its 536th and 537th meetings, held on 29 and 30 November 2023. At its 550th meeting, held on 8 December 2023, it adopted the present concluding observations.
A.Introduction
2.The Committee welcomes the submission of the second periodic report of the State party, which was prepared in response to the list of issues prior to reporting. The Committee also welcomes the information received from the State party on follow-up to the concluding observations on its initial report, and the additional information provided by the high-level and multisectoral delegation, which was headed by First Deputy Minister of Labour, Social Security and Migration, Nurdoolot Bazarbaev, and comprised the Permanent Representative and officials from the Permanent Mission of Kyrgyzstan to the United Nations Office and other international organizations in Geneva.
3.The Committee appreciates the open and constructive dialogue held with the delegation, the extensive information provided by the State party’s representatives and the constructive approach to the meetings, which allowed for joint analysis and reflection. The Committee is also grateful for the efforts made by the State party to submit replies and additional information within 24 hours of the dialogue.
4.The Committee notes that some countries in which Kyrgyz migrant workers are employed, such as Canada, Kazakhstan, the Republic of Korea, the Russian Federation and the United States of America, are not parties to the Convention.
5.The Committee is aware that Kyrgyzstan, as a country of origin of migrant workers, has made progress in protecting the rights of its nationals abroad. However, the Committee also notes that, as a country of origin and of return, the State party faces a number of challenges in respect of the protection of the rights of migrant workers and members of their families.
B.Positive aspects
6.The Committee notes that the State party has concluded some bilateral and multilateral agreements at the regional and international levels, and encourages the conclusion of such agreements insofar as they promote and protect the rights of migrant workers and members of their families. The Committee notes with appreciation, in particular:
(a)The ratification of the Protocol of 2014 to the Forced Labour Convention, 1930 (No. 29) of the International Labour Organizations (ILO), on 6 October 2020;
(b)The ratification of the Paris Agreement, on 18 February 2020;
(c)The ratification of the Convention on the Rights of Persons with Disabilities, on 16 May 2019;
(d)The accession to the Convention on the Privileges and Immunities of the Specialized Agencies, deposited with the Secretary-General on 7 June 2016;
(e)The accession to the Eurasian Economic Union, on 12 August 2015, within which migrant workers and members of their families are entitled to benefits.
7.The Committee welcomes the adoption of the following legislative measures:
(a)Government Order No. 169 of 23 April 2021, on covering the costs of repatriating the bodies of Kyrgyz citizens who have died abroad;
(b)The provisions in the Constitution of the Kyrgyz Republic, adopted by referendum on 11 April 2021, as amended, on the right of citizens to return to the country without hindrance;
(c)Presidential Decree No. 4 of 29 January 2021, on the adoption of measures to improve the migration situation, which highlights the importance of providing support to migrant workers abroad and in the State party;
(d)The agreement on pension provision for workers of the States members of the Eurasian Economic Union, signed on 20 December 2019;
(e)Government Decision No. 175 of 16 April 2019, introducing regulations on the procedures for the employment of foreign citizens and stateless persons in the State party and of Kyrgyz citizens abroad.
8.The Committee also welcomes the following institutional and policy measures:
(a)The Migration Policy Framework for 2021–2030, adopted by Government Decision No. 191 of 4 May 2021, and the action plan for the first phase of the Framework (2022–2025), approved by Order of the Cabinet of Ministers No. 191 of 13 April 2022;
(b)The National Development Programme until 2026, approved by Presidential Decree No. 435 of 12 October 2021, which highlights the need to ensure safe, orderly and regular migration;
(c)The Cabinet of Ministers Programme to Combat Trafficking in Persons for 2022–2025 and the action plan for its implementation.
C.Principal subjects of concern and recommendations
1.General measures of implementation (arts. 73 and 84)
Protection of rights in times of crisis
9.The Committee notes the information provided by the State party on the measures taken to ensure the protection of migrant workers in the territory and abroad during the coronavirus disease (COVID-19) pandemic and in the context of the armed conflict between the Russian Federation and Ukraine. However, the Committee remains concerned about the lack of information on the existence of a specific framework to ensure the rights of migrant workers in times of crisis.
10. The Committee recommends that the State party take all the measures necessary to develop and implement a framework to ensure the continued protection of the rights of migrant workers and members of their families in times of crisis such as wars, natural catastrophes and pandemics, including through the safe and rapid repatriation of Kyrgyz migrant workers and members of their families when necessary, and to mitigate the adverse effects of such events on the enjoyment of rights by migrant workers and members of their families.
Legislation and application
11.The Committee notes with concern that the definition of a migrant worker in the State party’s legislation is not in line with the Convention (arts. 2 and 5), as it includes only migrant workers who are documented or in a regular situation.
12. Reiterating its previous recommendations, the Committee recommends that the State party take the steps necessary to ensure that its national laws and policies are in line with the provisions of the Convention, including amending the definition of a migrant worker in legislation to include those in an irregular situation, to ensure protection of the rights of all migrant workers, in both regular and irregular situations, in accordance with the Convention.
13.The Committee is concerned about the lack of information on the application of the Convention by domestic courts and about the declaration by the State party in its report that there is no need for a direct reference to the Convention in national legislation.
14. Reiterating its previous recommendations, the Committee invites the State party to provide detailed information on the direct application of the Convention , particularly by domestic courts , in its next periodic report.
Articles 76–77
15.The Committee notes that the State party has yet to make the declarations provided for in articles 76 and 77 of the Convention, recognizing the competence of the Committee to receive communications from States parties and individuals.
16. Reiterating its previous recommendations, the Committee recommends that the State party make the declarations provided for in articles 76 and 77 of the Convention.
Ratification of relevant instruments
17.The Committee notes that the State party has not yet ratified or acceded to the ILO Migration Workers (Supplementary Provisions) Convention, 1975 (No. 143), the ILO Private Employment Agencies Convention, 1997 (No. 181), or the ILO Domestic Workers Convention, 2011 (No. 189).
18. Reiterating its previous recommendations, the Committee recommends that the State party consider ratify ing or acced ing to the above-mentioned instruments as soon as possible .
Data collection
19.The Committee welcomes the efforts of the State party to collect information and statistical data on migration issues but remains concerned about the lack of sufficient information on migration flows and on other migration-related issues. It regrets the lack of information on the various criteria required to enable it to fully assess the extent and manner of implementation of the Convention in the State party, in particular with regard to the rights of migrant women, unaccompanied migrant children and migrant workers both in and from the State party.
20. Reiterating its previous recommendations, the Committee recommends that the State party:
(a) Strengthen its efforts to ensure that the system for the compilation of migration-related statistics covers all aspects of the Convention and that detailed data is collected on the status of migrant workers in the State party, disaggregated, inter alia, by sex, age, nationality, reason for entry to and departure from the country, type of work performed, category of migrant worker, ethnic origin, migration status and disability ; i n cases where it is not possible to obtain precise information, such as in the case of migrant workers in an irregular situation, the Committee would appreciate being provided with information based on studies or other relevant sources, in line with target 17.18 of the Sustainable Development Goal s ;
(b) Ensure that the rights of migrant workers and members of their families to privacy, personal information and data protection are protected, including by establishing appropriate reporting firewalls and access limitations, and that personal information is erased once the purpose of the data collection has been achieved, so that personal data are not used for migration control or for discrimination in public and private services.
Independent monitoring
21.The Committee welcomes the increased budget of the Ombudsperson and notes that the State party has drafted a revised version of the constitutional law on the Ombudsman with regard to its mandate and resources.However, the Committee remains concerned that the Ombudsperson does not currently have a comprehensive mandate pertaining to the rights of migrant workers, that it lacks adequate human, technical and financial resources to work effectively and that there is a lack of transparency in the process of selecting members and a lack of cooperation with civil society.
22. T he Committee recommends that the State party accelerate the adoption of the draft constitutional law . Reiterating its previous recommendations, the Committee recommends that the State party provide the Ombudsperson with a broad mandate to promote and protect effectively the rights of migrant workers and members of their families under the Convention . The Committee also recommends that the State party ensure that the Office of the Ombudsperson has sufficient – and sufficiently anticipated – human, technical and financial resources to enable it to discharge its mandate , establishes a transparent process of selecting members and engages in effective cooperation with civil society, in full compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles).
Training on and dissemination of information about the Convention
23.The Committee notes the information provided by the State party about training initiatives regarding the Convention provided to civil servants and others who work in migration-related areas, and the development of a mobile application for migrant workers. The Committee, however, is concerned about the insufficiency of training on the Convention, and the lack of dissemination of information about the Convention and the rights enshrined therein among all relevant stakeholders, including all public officials who work in migration‑related areas and migrant workers and their families.
24. Recalling its previous recommendations, the Committee recommends that the State party:
(a) Strengthen education and training programmes on the rights of migrant workers and members of their families under the Convention and make such programmes available to all officials and others who work in the migration -related area s , in particular law enforcement and border authorities, judges, prosecutors, relevant consular officials, other officials at the national, regional and local levels , social workers, civil society organizations, including migrants’ organizations, labour inspection authorities and the media;
(b) Take further steps to ensure access for migrant workers to information and guidance about their rights under the Convention in all languages commonly used in the State party, in particular through pre-employment and pre-departure orientation programmes;
(c) Strengthen its work with civil society organizations and the media to disseminate information about the Convention throughout the State party and promote its implementation .
Corruption
25.The Committee notes the information provided by the State party that no cases of abuse of authority by public servants had been recorded against migrant workers, but is concerned that the level of corruption remains high, especially with regard to trafficking in persons and access to health-care services.
26. Recalling its previous recommendations, the Committee recommends that the State party take more effective measures to address all instances of corruption relating to migrant workers and members of their families, undertake appropriate inquiries into allegations of corruption and protect migrant workers who report corruption from reprisals. The Committee also recommends that the State party conduct information campaigns with a view to encouraging migrant workers and members of their families who claim to be victims of corruption to report the corruption and providing practical information about the rights and privileges of migrant workers and members of their families, and raise awareness among migrant workers and their families as to which services are free of charge.
2.General principles (arts. 7 and 83)
Non-discrimination
27.The Committee is concerned about the lack of comprehensive legislation prohibiting all forms of discrimination and about reports that migrant workers, in particular undocumented and irregular migrant workers, and members of their families, may in practice suffer various forms of discrimination, in particular in the areas of employment, education and health. The Committee is particularly concerned about the discrimination faced by migrant workers living with HIV/AIDS, owing to mandatory testing to obtain a work permit. The Committee regrets the lack of the information on actual practice and examples necessary to enable it to assess the implementation of the Convention with regard to the right to non‑discrimination of both documented and undocumented migrant workers.
28. With reference to its previous recommendations, the Committee recommends that the State party:
(a) Adopt comprehensive legislation prohibiting all forms of discrimination, in compliance with the Convention and other relevant international instruments;
(b) Take all the measures necessary to amend legislation to ensure that migrant worker s living with HIV/AIDS are able to obtain a work permit;
(c) Ensure that all migrant workers and members of their families, in both regular and irregular situations, within its territory or subject to its jurisdiction enjoy, without discrimination, the rights recognized by the Convention, in accordance with article 7 thereof, both in law and in practice;
(d) Take proactive measures to eliminate discriminatory stereotypes about migrant workers and members of their families, in political discourse and in the media, by strictly applying criminal law provisions and raising awareness among law enforcement officials, politicians, journalists and the general public as to the discriminatory nature of such stereotypes ;
(e) Provide information in its next periodic report on the measures taken to improve and implement its legislative framework on non-discrimination as regards the rights of migrant workers and members of their families, irrespective of their status.
Right to an effective remedy
29.The Committee notes the information provided by the State party that every person has access to the courts and enjoys the protection of the rights guaranteed by law, and that free legal aid is available regardless of nationality. However, the Committee remains concerned that this general entitlement to free legal aid applies only in criminal proceedings, and is therefore limited in civil and administrative proceedings to Kyrgyz citizens only. The Committee is also concerned that no information has been provided on the number of cases or proceedings brought by migrant workers and members of their families, including those in an irregular situation, which may reflect a lack of awareness on their part of their rights and of legal remedies available to them.
30. Reiterating its previous recommendations, the Committee recommends that the State party ensure that, in law and in practice, migrant workers and members of their families, including those in an irregular situation, have opportunities equal to those of nationals of the State party to file complaints and obtain effective redress in the courts in cases where their rights under the Convention are violated. The Committee also recommends that the State party take additional measures to inform migrant workers and members of their families, including those in an irregular situation, about the judicial and other remedies available to them in cases of violations of their rights under the Convention.
3.Human rights of all migrant workers and members of their families (arts. 8–35)
Consular assistance
31.The Committee notes the progress made in improving and broadening the State party’s consular services through the opening of several embassies and consulates. The Committee, however, is concerned about the lack of information on whether human, technical and financial resources made available to the State party’s consulates in Kazakhstan and the Russian Federation are sufficient for them to provide migrant workers with proper assistance and protection. The Committee notes the need for gender balance among officers deployed to work in the State party’s consular outposts in order to properly address the needs of migrant workers.
32. Reiterating its previous recommendations, the Committee recommends that the State party take the steps necessary to ensure that its consular services can effectively meet the needs of Kyrgyz migrant workers and members of their families in terms of protecting their rights and providing them with assistance. Those steps should include allocat ing sufficient human resources and funding, the develop ing of continuing training programmes for consular officials on the Convention and other human rights treaties and ensuring gender balance among officers in the State party’s consular outposts .
Trade unions
33.The Committee notes the information provided by the State party that migrant workers and members of their families have the freedom to join and take part in meetings of trade unions. However, the Committee is concerned about reports that a blanket ban on peaceful assembly has been introduced in Bishkek, and about the negative consequences of the blanket ban on the enjoyment of rights by migrant workers and members of their families.
34. The Committee recommends that the State party take all the measures necessary, including legislative amendments, to guarantee the right of all migrant workers to take part in trade union activities and to freely join trade unions, in accordance with article 26 of the Convention and the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) .
Medical care
35.The Committee notes the information provided by the State party that emergency medical care is available to all, including migrant workers and members of their family. The Committee, however, remains concerned about reported difficulties faced by migrant workers, particularly those in an irregular situation, regarding access to essential health-care services, including during the COVID-19 pandemic. The Committee is also concerned about the lack of information on access to health care for Kyrgyz migrant workers who return to the State party.
36. Recalling its previous recommendations, the Committee recommends that, in accordance with article 28 of the Convention, the State party take concrete and effective measures to ensure access to health-care services – including , but not limited to , emergency and urgent medical care – for all migrant workers and members of their families on the basis of equality of treatment with nationals of the State party , and for Kyrgyz migrant workers upon their return .
Birth registration and nationality
37.The Committee welcomes the legislative measures taken by the State party to ensure the birth registration of all children born in its territory, and the amendment of the definition of a stateless person. However, the Committee notes that the State party has yet to ratify the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.
38. The Committee recommends that the State party ratify the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness and harmoni ze its legislation with the m, in line with target 16.9 of the Sustainable Development Goals .
Education
39.The Committee is concerned about barriers to access to education for the children of migrant workers, such as lack of residence registration, parents’ lack of valid identity documents and lack of personal identification number. The Committee is also concerned about the lack of information on specific programmes to ensure that children of migrant workers in an irregular situation have access to education.
40. With reference to its previous recommendations, the Committee recommends that the State party, in accordance with joint general comments No. 3 and No. 4 of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families / No. 22 and No. 23 of the Committee on the Rights of the Child (2017) and with target 4.1 of the Sustainable Development Goals:
(a) Ensure that all children of migrant workers, irrespective of their status, have access to preschool, primary , secondary and higher education on the basis of equality of treatment with nationals of the State party , in compliance with article 30 of the Convention;
(b) Improve reporting between law enforcement and immigration authorities , on the one hand, and education services , on the other, so that all migrant workers and members of their families in an irregular situation send their children to school;
(c) Include in its next periodic report comprehensive information on the measures taken in that regard, including statistics, and on the enrolment rates of children of migrant workers in an irregular situation.
4.Other rights of migrant workers and members of their families who are documented or in a regular situation (arts. 36–56)
Pre-departure and the right to be informed
41.While noting the measures taken by the State party to provide information to migrant workers, including through a website, the Committee remains concerned about the lack of standard pre-employment and pre-departure orientation programmes provided by the Ministry of Labour, Social Security and Migration, and about the lack of dissemination of information on the rights of migrant workers under the Convention.
42. Reiterating its previous recommendations, the Committee recommends that the State party take appropriate measures to disseminate information on the rights of migrant workers under the Convention, on the conditions of their admission and employment and on their rights and obligations under the law and practice of States of employment. The Committee also recommends that the State party further strengthen targeted pre-departure and awareness-raising programmes, including in consultation with relevant non-governmental organizations, migrant domestic workers and their families, and recognized and reliable recruitment agencies.
Right to vote and to be elected in the State of origin
43.The Committee notes the efforts of the State party to facilitate the right to vote by opening polling stations abroad, simplifying the procedures to vote abroad and to register with consulates and conducting awareness-raising campaigns, which have led to an increase in voting among Kyrgyz migrant workers abroad. The Committee also notes the information provided by the State party on the steps taken towards introducing electronic voting. However, the Committee remains concerned about the level of participation of Kyrgyz migrant workers abroad in the parliamentary elections held in November 2021, which remained low in comparison to the total number of Kyrgyz citizens working abroad.
44. Recalling its previous recommendations, the Committee recommends that the State party strengthen its efforts to guarantee the right to vote of Kyrgyz migrant workers and members of their family living abroad, including by ensuring the availability of polling stations , facilitating voting through the use of new technologies , ensuring the protection of voters’ personal data and secur ing sufficient funding for overseas voting.
5.Provisions applicable to particular categories of migrant workers and members of their families (arts. 57–63)
Frontier and seasonal workers
45.The Committee is concerned about the lack of information on the measures taken by the State party to ensure that frontier and seasonal workers are able to enjoy the rights to which they are entitled by reason of their presence and work in the territory.
46. Recalling its previous recommendations, the Committee recommends that the State party take the measures necessary to ensure that frontier workers enjoy the same rights as national workers, and invites the State party to provide information in its next periodic report on the measures taken to ensure that frontier and seasonal workers are able to enjoy the rights to which they are entitled by reason of their presence and work in the territory of the State party, in accordance with article 57 of the Convention.
6.Promotion of sound, equitable, humane and lawful conditions in connection with the international migration of workers and members of their families (arts. 64–71)
Children in situations of international migration
47.The Committee notes the measures taken by the State party to gather data on the children of migrant workers left without parental care, but remains concerned about the high number of children of migrant workers who are left without formalized kinship of guardianship, and suffer violence, abuse, neglect and exploitation.
48. T he Committee recommends that the State party conduct a nationwide study on migrant children, including both migrant children in the State party and children of Kyrgyz migrant workers abroad who have been left behind in the State party, in order to effectively design policies and programmes.
Protection and assistance for migrant workers abroad
49.The Committee is concerned about reports that Kyrgyz migrant workers and members of their families face discriminatory attitudes and are often targets of hate crimes and xenophobic assaults in the main countries of employment, in particular in the Russian Federation. The Committee is particularly concerned about the lack of protection of Kyrgyz migrant workers abroad from violations of their rights, including arbitrary detention and expulsion and deprivation of liberty in temporary immigration detention centres, and about the lack of protection from recruitment as mercenaries in the Russian Federation. The Committee is also concerned about the lack of information regarding cultural initiatives for the community of Kyrgyz migrant workers, including online courses on the Kyrgyz language and history.
50. Recalling its previous recommendations, the Committee recommends that the State party provide consular assistance to Kyrgyz migrant workers who are victims of discrimination and violence, to protect their rights and interests in the countries of employment with a view to promoting the investigation, prosecution and sentencing of perpetrators of crimes against them. It also recommends that the State party raise awareness among its nationals about the potential risks of migration.
Illegal or clandestine movements and employment of migrant workers in an irregular situation
51.The Committee notes the efforts of the State party to combat trafficking in persons in its territory, including through legislative measures, international cooperation, training and awareness-raising. However, the Committee remains concerned about the persistence of trafficking in persons in the State party, the lack of data on the scale of the phenomenon, the lack of measures to address the causes of trafficking in persons and the focus of efforts on the State party as a place of origin for trafficking, at the expense of victims of trafficking transiting through the territory.
52. Recalling its previous recommendations, the Committee recommends that the State party, in accordance with the Recommended Principles and Guidelines on Human Rights and Human Trafficking of the Office of the United Nations High Commissioner for Human Rights ( OHCHR ) and with target 5.2 of the Sustainable Development Goals:
(a) Implement the Cabinet of Ministers Programme to Combat Trafficking in Persons for 2022–2025 and the action plan for its implementation, ensuring its full compatibility with the Convention and the allocation of adequate resources, and ensur e that it addresses the root causes of trafficking in persons ;
(b) Enhance the guidelines for the early identification of victims of trafficking and reinforce the mechanisms of support, referral, rehabilitation and social integration for victims, including by providing them with access to shelters and legal, medical and psychosocial assistance;
(c) Ensure that child victims of trafficking are provided with appropriate assistance and protection , with full account taken of their special rights and needs;
(d) Ensure prompt, effective and impartial investigation, prosecution and punishment in all cases of trafficking in persons and other related offences;
(e) Strengthen training, including on gender-responsive and child-friendly approaches, for law enforcement officials, judges, prosecutors, labour inspectors, teachers, health - care workers and the staff of the State party’s embassies and consulates, and more widely disseminate information on trafficking in persons and assistance for victims, while ensuring a multidisciplinary approach;
(f) Step up awareness-raising and information campaigns on the prevention of trafficking in migrant workers and encourage the private sector to protect persons from all forms of exploitation, including forced labour and services;
(g) Systematically collect disaggregated data on trafficking in persons, including data on all forms of exploitation, with a view to preventing such trafficking;
(h) Continue to strengthen international, regional and bilateral cooperation through agreements with countries of origin, transit and destination on prevent ing and combating trafficking in persons;
(i) Provide in its next periodic report data on trafficking, prostitution and other exploitation of women and girls, the number of prosecutions and convictions in cases of trafficking and sexual exploitation, and the impact of the measures taken to combat these phenomena.
Measures to address migrant workers in an irregular situation
53.The Committee is concerned about the lack of clarity regarding the concrete measures taken by the State party to ensure that the irregular situation of migrant workers and members of their families within its territory does not persist.
54. The Committee recommends that the State party, in accordance with the OHCHR Recommended Principles and Guidelines on Human Rights at International Borders:
(a) Take appropriate measures to establish procedures for regularizing the situation of migrant workers in an irregular situation , so as to ensure that such a situation does not persist;
(b) Raise awareness among migrant workers in an irregular situation about such procedures;
(c) Ensure that no measures aimed at addressing irregular migration or smuggling of migrants adversely affect the human rights of migrant workers and members of their families , and that they are provided with the necessary assistance and afforded due process guarantees.
7.Dissemination and follow-up
Dissemination
55. The Committee requests the State party to ensure the timely dissemination of the present concluding observations, in the official languages of the State party, to the relevant State institutions at all levels, including to government ministries, the legislature, the judiciary and relevant local authorities, as well as to non-governmental organizations and other members of civil society.
Technical assistance
56. The Committee recommends that the State party avail itself of international assistance for the implementation of the recommendations contained in the present concluding observations in line with the 2030 Agenda for Sustainable Development. It also recommends that the State party continue its cooperation with specialized agencies and programmes of the United Nations. The Committee stands ready to provide technical assistance to the State party regarding the implementation of the Convention.
Follow-up to concluding observations
57. The Committee requests the State party to provide, within two years (that is, by 2 January 2026), written information on the implementation of the recommendations contained in paragraphs 12 ( legislation and application ), 1 8 ( ratification of relevant instruments ), 20 ( data collection ), 30 ( right to an effective remedy ) and 5 2 (i llegal or clandestine movements and employment of migrant workers in an irregular situation ) above.
Next periodic report
58. The Committee requests the State party to submit its third periodic report by 2 January 2029. The Committee will adopt a list of issues prior to the submission of the report , under the simplified reporting procedure , at one of its sessions preceding this date, unless the State party explicitly opts for the traditional reporting procedure concerning its third periodic report. The Committee draws the State party’s attention to its harmonized treaty-specific guidelines.