DOI: 10.5553/CAYILIR/277314562022001001011

Central Asian Yearbook of International Law and International RelationsAccess_open

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Regional Labour Mobility Within the Eurasian Economic Union

Towards Regularising Irregular Migration in Central Asia?

Keywords common labour market, regional labour mobility, irregular migration, regularisation of migration, Eurasian Economic Union, EAEU migration law
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Khalida Azhigulova, 'Regional Labour Mobility Within the Eurasian Economic Union', (2022) Central Asian Yearbook of International Law and International Relations 220-243

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    • 1 Introduction

      The break-up of the Soviet Union in 1991 resulted not only in the creation of 15 newly independent states but also in the erection of internal borders and customs and migration controls in the once common post-Soviet space. In the 1990s and 2000s, ineffective and corrupt economies and local armed conflicts led to the impoverishment of large masses of people for whom labour emigration and cross-border trade became and remain the only legal way to survive. Throughout this period, Russia has been the main destination for labour migrants from post-Soviet states in Eastern Europe, South Caucasus and Central Asia. In the 2000s, following rapid economic growth, Kazakhstan became the second major destination for migrants from Central Asia. The regional labour mobility in this period was largely irregular. The absence of visa regimes among most of the post-Soviet states complicated the quantification of labour migration. The absence of adequate legal frameworks and regulations not only forced most of the low-skilled migrants to work illegally but also subjected them to various forms of exploitation and even slavery.
      The same post-Soviet era also marked the growth and proliferation of integration processes that pursued, among other goals, the facilitation of regional labour mobility. Most of the states in Eastern Europe sought association with and membership in the European Union as both an economic and political entity. Another sizeable group of post-Soviet states, on the other hand, were favouring regional economic integration with and around Russia, which was still a key economy in the region, although trying to avoid political integration that could jeopardise their sovereignty.
      The year 2010 marked the creation of a new customs union in the post-Soviet space that was based on the principles of free movement of goods, services, capital and labour. The initial members of the Union – Belarus, Kazakhstan and Russia – were soon joined by two more post-Soviet states: Armenia and Kyrgyzstan. In 2015, the customs union was incorporated into the Eurasian Economic Union (EAEU). Among the claimed benefits of the EAEU is the facilitation of labour migration within the region. Indeed, access to Russia’s and Kazakhstan’s competitive labour markets for nationals of other member states with struggling economies can be regarded as positive regional development. The EAEU is stated to improve the legal status and social protection of labour migrants within the bloc and regularise irregular migration flows. On the other hand, there has been little research on whether the regional agreements of the EAEU and the national legislation and practices of its member states may actually lead to irregularity of regional citizens.
      Drawing on the analysis of the EAEU’s migration law; legislation, policies and practice of the Union’s member states; statistics on regular and irregular working migration; international organisations’ and NGOs’ reports and legal scholarship, this article explores the conditions for regional labour mobility within the EAEU and assesses the extent to which the Union’s legal framework and its member states’ administrative practices have been efficient in addressing irregular labour migration and protecting labour migrants’ rights within the EAEU space. The article also analyses how this new regional structure may have affected labour mobility from non-member states located in Central Asia. The article argues that both nationals and non-nationals of the EAEU are at risk of falling into irregularity. While the EAEU’s migration law benefits the nationals of the Union’s sending member states (e.g. Kyrgyzstan), its functioning exacerbates the situation of working migrants from non-member states, especially from Uzbekistan and Tajikistan, pushing them into irregularity and exposing them to a risk of abuse, including exploitation, forced labour and slavery. As for the nationals of the EAEU space, a low level of legal awareness among the low-skilled workers, together with generally low respect towards human rights and the rule of law principle in the region, may prevent workers from benefiting from the Treaty regime and force them to continue working in the informal economy. Thus, more time and more systemic changes in the peoples’ mentality and political regimes may be needed before the Treaty achieves its aim of creating a truly effective common labour market where all nationals may engage in regular labour migration and enjoy the protection of their migrant and human rights. Finally, the article explores the existing tensions between the Union’s member states on labour migration regulation and concludes that given the strategic importance of labour migration in building economies of the sending member states of the Union (e.g. Kyrgyzstan), failure to create an effective common labour market poses a serious risk to the very existence of this integration entity.
      The discussion is organised in four parts. Part One discusses the foundation of the EAEU and the historical context of its creation. It also briefly discusses the context of the emergence of irregular migration in the Commonwealth of Independent States (CIS) and EAEU. Part Two explores the EAEU migration law and analyses the extent to which it may create situations of irregularities for the workers of the Union’s member states. Part Three explores the scholarship and various media and NGO reports on the implementation of the EAEU Treaty’s provisions on labour migration in the Union’s main destination states – Russia and Kazakhstan.1x Ni 2015. Part Four discusses how the functioning of the EAEU has affected working migrants of other CIS states that are not members of the Union.

    • 2 A New Union in the Remains of the Old: Resurrection or Reset?

      The EAEU is a regional economic integration entity that came into full operation as of 1 January 2015. The Union aims to establish a common market with free movement of goods, services, capital and labour.2x Treaty on the Eurasian Economic Union (adopted 29 May 2014, entered into force on 1 January 2015) (The EAEU Treaty), Arts 1-2. The purpose of the Treaty is set forth in the following terms: “[T]he Union pursues to upgrade and raise the competitiveness of and cooperation between the national economies, and to promote stable development in order to raise the living standards of the nations of the Member-States.”3x Ibid., Art 4. To this end, member states agreed to carry out a joint coordinated policy in prioritised economic areas and harmonise their legislation therein. Among the prioritised economic areas are customs fees, energy policy, trade, investments, transport and logistics, currency control, intellectual property, financial markets, IT and working migration. The Union has fully operating supranational structures, including the Supreme Eurasian Economic Council, which is made up of the heads of member states, the Eurasian Economic Commission (EEC) – an executive body with 15 departments – the EAEU Court,4x The EAEU Court is open only to member states, their legal entities and individual entrepreneurs. Nationals, including workers, do not have access to it. the Eurasian Development Bank and the Eurasian Fund for Stabilization and Development.5x Vinokurov 2017, p. 70.
      The idea of creating a new integration entity developed in 1994, a few years after the collapse of the Soviet Union. It should be noted that there was already another institution of former USSR states – the CIS, which was established in December 1991 in the wake of the USSR’s dissolution by 12 former USSR Republics (except the Baltic states). However, the CIS did not call for integration but rather aimed at promoting cooperation and a good neighbourhood among former USSR states without creating any supranational entity. Since 1994, the integration idea gradually developed first, leading to the establishment of a free trade zone between Belarus, Kazakhstan and Russia in 1996 and then taking the form of different regional entities: the Eurasian Economic Association in 1999, the customs union in 2010 and, finally, the EAEU in May 2014, which became fully operational as of 1 January 2015.6x Ibid., p. 54. As of 1 January 2017, the EAEU has five states – the founding states of Belarus, Kazakhstan and Russia, and Armenia and Kyrgyzstan, which joined the Union on 2 January 2015 and 24 May 2015, respectively. According to the latest statistics available at the EAEU website, its population is 182.7 million people, just over 50% of whom are economically active, and the average level of unemployment is 5.3%.7x See Website of the EAEU. http://www.eaeunion.org/#about. Accessed 20 April 2018.
      It should be noted that back in 1991, the economies of the USSR Republics were not prepared to assume full independence after the rather unexpected and rapidly evolving historical events. As a result, even after the collapse of a big country, the newly independent states were, in effect, not independent in determining their individual economic policies. As a result of the specific Soviet economic policy of “divide and rule” (when different production cycles were located in different republics), the new states were still very much dependent on each other in their economies. Following the privatisation and/or closure of major industrial enterprises across all CIS states, millions of people lost their jobs and became impoverished. Permanent emigration, temporary working migration and cross-border trade became, in effect, a survival strategy for many people. While the CIS states introduced visa-free regimes for the nationals of the Commonwealth (except Turkmenistan), they also introduced protectionist migration regimes. Thus, the right to free movement and temporary stay in the CIS states did not include a right to work. Each state had its own legislation on labour immigration, and any privileges for workers of the CIS states were decided in the format of bilateral treaties. In the 1990s in the CIS space, Russia was the only major destination country for CIS workers. For example, in 2000, 73% of 250,000 working migrants in Russia were from the CIS states.8x Zaionchkovskaya 2001. However, since the early 2000s, Kazakhstan became and remains the second major destination country for CIS nationals following its rapid economic growth, boosted by the trade in mineral resources.9x Sadovskaya 2016, p. 17. Both states have continuously attracted high-skilled and low-skilled workers. If the high-skilled workers were arriving mainly from outside the CIS region, e.g. from the USA, EU, Turkey and China, the low-skilled labour arrived mainly from other CIS states. Russia attracted the nationals of all CIS states, with significant numbers of migrants arriving from Uzbekistan, Ukraine, Moldova, Armenia and Kyrgyzstan, while Kazakhstan has been the main destination for nationals of Central Asian states – Kyrgyzstan, Uzbekistan and Tajikistan. Unfortunately, owing to protectionist regimes, migratory flows of low-skilled workers from the CIS states soon became irregular.10x Ni 2015.
      Russia and Kazakhstan took different approaches towards regularising low-skilled workers. Since 2006, Russia has gradually reformed its migration legislation and made it quite liberal, providing different ways for low-skilled migrant workers to obtain a regular status. For example, the CIS workers could, on arrival, purchase individual work permits (patents) and then enter into individual employment contracts with natural persons. The CIS workers could also apply and obtain a certificate of an individual entrepreneur that allowed them to enter into service contracts or trade at local markets (bazaars). Thus, Russia acknowledged the need for low-skilled labour and introduced rather liberal procedures to satisfy the demand on the market and help them to have regular status. Despite these measures, as of 2014, there were still around 3.6 million irregular working migrants in Russia. Part Four explores in more detail the current measures taken to regularise migration in Russia.
      Kazakhstan, on the contrary, has until now failed to create any legal employment conditions for low-skilled migrant workers. Its migration policy has constantly been targeting only high-skilled workers and ethnic Kazakhs repatriating from other countries.11x Ibid, pp. 7,10. Since 2006, the government has annually been issuing between 22,000 and 55,000 work permits. But these permits were targeting only high-skilled workers, and a prospective employer had to apply for them at least four months in advance, providing the exact names and other personal data of prospective employees. Most of these work permits were eventually given to nationals of states with which Kazakhstan had a visa regime. Contrary to the situation in Russia, workers from other CIS states are not allowed to work as individual entrepreneurs unless they become permanent residents. However, the procedure of obtaining a residence permit is rather cumbersome and bureaucratic and demands that an applicant prove his/her financial solvency, set at a rather high threshold of 1, 320 monthly calculated indices (MCI)12x Rules for confirmation of the solvency by foreigners and stateless persons applying for permanent residence permits in the Republic of Kazakhstan during their stay in the Republic of Kazakhstan, approved by Decree of the Government of the Republic of Kazakhstan dated 26 November 2003 # 1185. https://adilet.zan.kz/rus/docs/P030001185_#z4. Accessed 1 June 2022. which is equivalent to about 10,000 USD,13x In 2022, 1 MCI is equal to 3,180 KZT. https://online.zakon.kz/m/document?doc_id=1026672. Accessed 1 June 2022. and is beyond the reach of the majority of working migrants from Central Asian states. According to the Kazakh authorities, the number of irregular migrants from the CIS in Kazakhstan is around 300,000, but the International Organisation for Migration puts this number even higher, at 1 million,14x Shormanbayeva et al. 2016, p. 19. or almost 20% of the economically active population.
      As of 1 January 2017, only nine states enjoyed full membership of the CIS, of which only four were not members of the newly created Union – Azerbaijan, Moldova, Tajikistan and Uzbekistan, with the latter two Central Asian states being the major sending states to Russia and Kazakhstan. Part Four will explore how the situation of working migrants from both member- and non-member states has been affected in Russia and Kazakhstan since 1 January 2015 when the EAEU Treaty entered into force.

      2.1 How Many Working Migrants Are in the EAEU Region?

      At the moment, Russia and Kazakhstan remain the two main destinations for migrant workers within the EAEU and in other Central Asian non-member states. Thus, the statistics of migrant workers will be analysed for these two states. Yet migration flows to the main destination countries are difficult to ascertain. Full and accurate data are not available because the overwhelming majority of working migrants arrive from the CIS states, with which there is a visa-free regime and work without a work permit. While this is a lawful condition for nationals of the EAEU’s member states, this contravenes domestic migration regulations for third countries’ nationals and puts them in an irregular situation. Parts Three and Four will return to the issue of the statistics of regular and irregular migrants in the EAEU region.

    • 3 EAEU’s Common Labour Market: Law in Books

      The EAEU migration law at the moment consists of three documents: Chapter 26 of the EAEU Treaty (Arts 96-98), 2012 Agreement on Cooperation in Combatting Irregular Migration from Third Countries, and Protocol No. 30 to the EAEU Treaty on Medical Assistance for Workers of Member-states. Also, member states are in the process of negotiating a Draft Agreement on Pension Security that aims to introduce pension mobility for workers.15x Aliyev 2016b, p. 7.
      Although the volume of the Union’s migration law is not large, it introduces concrete and robust privileges and guarantees for workers of the EAEU member states, enshrined in 3 articles and 24 paragraphs of the EAEU Treaty. This part first considers provisions that create favourable conditions for regional mobility of workers and then goes on to discuss those aspects that may put workers at risk of irregularity.

      3.1 Provisions Promoting Regional Mobility

      Before we examine the Treaty provisions, we should note that there is no reference to migrants in the EAEU Treaty or any related policy and guidelines materials. The word “migrant” has acquired a negative meaning in the rhetoric of state officials, media and among the public, mostly because the majority of migrant workers in the destination countries have no regular status. In order to differentiate migrant workers originating from the EAEU member states from other migrant workers, the former are called “workers of the EAEU’s member states”. This term will be used throughout the rest of this article.
      According to the EAEU Treaty, governments may not implement protectionist restrictions on workers, including on their occupation or territory of employment safe for reasons of national security and public order.16x EAEU Treaty, Art. 97(2). Employers may hire workers from other member states without consideration of restrictions applicable to other third-country workers,17x Ibid., Arts 97(1). such as licensing or quota regulations.18x Quota systems for hiring foreign workers are available in Kazakhstan and Russia and involve a rather complicated process when an employer has to prove that a local worker is not available to do the same job. Moreover, employers have to apply for work permits seven months (in the case of Russia) and five months (in the case of Kazakhstan) in advance prior to the year in which a prospective employee will be hired. In Kazakhstan, the process of granting or refusing quotas also suffers from non-transparency. Also, workers themselves are free to look for jobs and can enter into employment or service contracts with legal and natural persons without having to purchase work permits (also called patent in local legislation). Workers and their family members can stay in the host country as long as they have a valid employment contract, and without one, they are limited to stays of 90 days.19x Schenk 2015.
      As for the employment rights, workers of member states have the same rights to enter into employment and service contracts as the nationals of the destination state, and local employers are not allowed to demand any extra documents from the EAEU workers that are not envisaged by the labour legislation applicable to nationals. Workers’ education certificates and research degrees are automatically recognised by other member states if they were awarded by the EAEU member states. Moreover, workers and their families enjoy the same rights to welfare and social security that are available to national employees according to the local legislation. For example, workers in Russia do not have to satisfy the following requirements: register with migration police since seven days of arrival, pass exams in the Russian Language, Russian History and Introduction to the Federal Law, pass a medical examination, purchase medical insurance and pay for a work permit.20x Eurasian Analytical Club 2016. Next, the EAEU workers’ children have free access to kindergartens/nurseries and primary/secondary schools, and all their family members are covered by medical insurance according to the local legislation applicable to nationals. Finally, the EAEU workers have rights to own, acquire and protect their property; a right to free transfer of funds; a right to become members of professional unions; and a right to seek and receive information from state-run employment agencies on their rights and obligations in the country of employment.21x EAEU Treaty, Art. 98.
      The EAEU obviously represents a quite ambitious project in the creation of a common labour market. But it should be noted that the main purpose of its creation was not regularising or promoting labour migration among the founding states. Labour migration between the founding states of Belarus, Kazakhstan and Russia made up only a small part of the general labour immigration and hardly raised any irregularity issues. However, the accession of Armenia and Kyrgyzstan and potentially other “sending” states could have a visible impact on labour markets in Russia and Kazakhstan.22x Schenk 2015. On the one hand, over time the EAEU’s common labour market may prove to be a significant positive factor in the economic growth of smaller economies, such as Kyrgyzstan and Armenia, whose long-term economic stability largely depends on sending unemployed nationals abroad en masse and then receiving their remittances.23x Vinokurov 2017. According to the IOM, four CIS countries (including two EAEU member states) are on the list of the top 10 remittance-receiving countries in the world: Armenia – 18% of its GDP coming from remittances, Moldova – 26%, Kyrgyzstan – 30%, and Tajikistan – 42% (2014).24x Vinokurov et al. 2016, p. 10. The first available statistical data indicates that the common labour market has already benefited sending states: in 2015, the number of Kyrgyz migrant workers in Russia increased by 11%, while the number of Tajik migrant workers decreased by 13.7%.25x Vinokurov 2017.
      Although the aforementioned Treaty provisions may seem positive for labour migration, it is also important to ascertain the extent to which the Treaty provisions may give rise to situations of irregularity. The Treaty provides a list of legal definitions relating to labour migration, including a “worker of the EAEU” and “labour activities”.26x EAEU Treaty, Art. 96. In particular, a “worker” of the EAEU member state is defined as

      a person who is a national of a Member-state lawfully residing and lawfully engaged in labour activities in the state of employment, of which he or she is not a national and where he or she does not permanently reside.27x Ibid, Art. 96(5).

      “Labour activities”, in turn, mean activities performed under an employment or service contract in the territory of the state of employment in accordance with the legislation of that state.28x Ibid. Thus, irregularity may occur in two situations: (1) when a worker is either not lawfully residing or (2) is not lawfully engaged in labour activities. The EAEU Treaty’s provisions on labour migration do not envisage the acquisition of a permanent residence by workers of the Union’s member states. Thus, the right to work without a work permit in the territory of other member states confers only a temporary residency status. Acquisition of permanent residency and nationality is regulated by each member state individually. In effect, all member states have separate bilateral treaties with each other on simplified procedures for acquisition of permanent residence permits and citizenship by the nationals of other member states of the Union. Yet the EAEU makes it easier to find a temporal or seasonal job for those workers who do not plan to move permanently to the host state and who prefer to keep their residence registration in the home country.
      Finally, apart from the EAEU Treaty’s provisions, there are other sources of the Union legislation that have a bearing on labour migration. In particular, there is an Agreement on Cooperation in Combatting Illegal Migration from Third Countries signed in 2010. This Agreement explicitly states that it applies only to nationals of third countries.29x Agreement on Cooperation in Combatting Illegal Migration from Third Countries signed (adopted on 19 November 2010). Thus, the EAEU law implies that nationals of member states cannot be in an irregular situation. The following sections explore whether the EAEU Treaty’s provisions may lead to any of the two situations when a worker may find himself/herself in an irregular situation owing to a violation of rules on temporary residency or engagement in labour activities.

      3.2 Situation 1: Risk of Unlawful Residence

      The Union Treaty contains confusing provisions regarding the period of regular stay for nationals of member states. The confusion occurs because of the different migration regimes for nationals who arrive for the purpose of work and for nationals who arrive for any other purpose, e.g. private visit, family visit or tourism. The Treaty specifies a migration regime only for workers and members of their families, and this regime is the same in all member states. As for the migration regime for all other categories of nationals of member states, it is regulated by bilateral agreements between individual member states. There are two main cases where a foreign national may violate the rules of residence in another member state: (1) if he/she fails to register with the migration authorities within a specified period (ranging from 5 to 30 days in different member states); and (2) if he/she exceeds the authorised duration of stay (ranging from 90 to 180 days in different member states).
      As for the non-working nationals, the problem lies in the fact that similar bilateral treaties set different conditions on registration and stay for nationals of different member states. For example, a bilateral agreement between Russia and Kazakhstan stipulates that their nationals can stay in each other’s territory without registration up to 30 calendar days; if they stay longer, they have to register and with registration can stay up to 90 days.30x Agreement between the Russian Federation and the Republic of Kazakhstan on Stay Arrangements of Citizens of the Russian Federation in the Republic of Kazakhstan and of Citizens of the Republic of Kazakhstan in the Russian Federation (adopted on 7 June 2012, entered into force on 23 January 2015). At the same time, nationals of Kazakhstan can stay in Russia for a maximum of 90 days in every 180 days, according to the Russian domestic legislation, whereas such a rule does not exist in the Kazakhstani legislation, and Russian nationals can re-enter Kazakhstan on the same day as they leave it on expiry of a 90-day period.31x This issue is regulated by the domestic legislation of each state. However, according to the bilateral agreement between Kazakhstan and Kyrgyzstan, Kyrgyz nationals must register with Kazakhstani migration police within five calendar days of arrival and then can stay up to 180 days.32x Agreement between the Republic of Kazakhstan and the Republic of Kyrgyzstan on Stay Arrangements of Citizens of the Republic of Kazakhstan in the Republic of Kyrgyzstan and of Citizens of the Republic of Kyrgyzstan in the Republic of Kazakhstan (adopted on 11 May 2012). Next, according to all bilateral treaties between member states, except between Belarus and Russia, all foreign nationals have to fill in migration cards on arrival as evidence of the date of entry and keep them until exit. Failure to observe regulations on registration and stay and loss of a migration card will put a foreign national in an irregular situation.
      The EAEU Treaty has established a uniform approach to registration and stay of workers in member states. According to the Treaty, nationals of the EAEU member states, together with accompanying family members, who arrive for work purposes and stay less than 30 calendar days are exempted from registration with migration authorities. Moreover, if they use a national passport on entry and stay for less than 30 days, they do not need to fill in and keep a migration card.33x EAEU Treaty, Art 97(8). Registration with migration authorities and filling in a migration card becomes mandatory only if workers’ stay exceeds 30 days.34x Ibid. There is some ambiguity in this part of the Treaty because it does not explicitly state the maximum duration of stay during which a worker can look for a job if he/she originally arrived at his own initiative without a secured contract. The answer can be found in the non-binding guidelines issued by the EEC that specify that the maximum stay of workers without a labour or service contract is 90 days.35x Aliyev 2016a, p. 43.
      Next, the Treaty is silent on how workers can extend their stay beyond 90 days if they have found a job or what they should do if they have not found one within 90 days. Moreover, a rather legalistic text may be difficult for lay people to understand. For this reason, the EEC issued an illustrated handbook for workers that gives step-by-step guidelines on how to ensure a lawful stay in another member state.36x Aliyev 2016b. The guidelines cover only one scenario for Kyrgyz workers in Russia. This handbook is indeed quite comprehensive and clearly written. It explains that after a worker has found a contract, either his/her landlord or employer must apply to a local migration authority and submit a labour or service contract together with passports and migration cards of the worker and his/her family members. If a worker enters into a fixed-term contract, he/she will be registered for the duration of this contract; if a worker has an indefinite contract, the registration is given for one calendar year with subsequent prolongation on an annual basis.37x Ibid., p. 13. The handbook further elaborates that an employment/service contract should be concluded within 90 days of a worker’s arrival in the employment state. If a worker exceeds this term and has not entered into an employment or service contract, then he/she will get into an irregular situation. While this handbook clarifies some complex provisions of the Treaty, unfortunately, no such comprehensive guidelines are available for workers who seek employment in other member states. Thus, it is not clear whether the same provisions will be applicable to workers in other member states, given that the Treaty makes a number of references to domestic legislation of member states that can diverge from each other.
      Next, after a worker has entered into an employment or service contract, the Treaty provides that the duration of stay of the worker and his/her family members depends on the duration of the contract.38x EAEU Treaty, Art. 97(5). In case of early or timely termination of a contract that takes place 90 days after a worker’s arrival, a worker has a right to remain in the employment state and enter into a new contract within 15 days. This paragraph presents several problems. First, it is not clear what a worker should do if a contract is terminated before the expiration of a 90-day period since his/her arrival. Some clarifications may be deduced from the handbook for workers, according to which a migrant may have a longer period than 15 days to enter into a new contract as long as his/her overall stay has not yet exceeded 90 days of arrival.39x Aliyev 2016b, p. 10. It can be further deduced that a worker must leave the country to avoid irregularity, although this is not explicitly stated in the handbook. Next, it is unclear what will happen if a worker finds a job but does not manage to sign a new contract within 15 days. Nor are there any provisions in the Treaty that explain how local migration authorities should gather information about early termination of a contract as no prescribed obligation exists on an employer to notify migration authorities about such events. Again, only the EEC’s Guidelines clarify that it is the employer who bears the responsibility to notify the migration authorities about the early termination of a contract within three days of the relevant event.40x Aliyev 2016a, p. 51. Yet it appears that this issue is regulated by the domestic legislation of Russia, and no data is available across other member states. Finally, 15 days appears like a rather short period in which to find new employment, given that even the initial period of stay is up to 30 days without registration. Given that according to the Russian legislation, all foreign nationals, including the EAEU nationals, can stay in the territory for a maximum of 90 days within a 180-day period, it appears that workers may fall into irregularity if they miss the term to conclude a new contract or feel tempted to overstay to continue working. There is even more pressure on those workers who have children attending schools in the employment state.
      A problem with the legality of stay may also occur with those workers who have to travel abroad as part of their employment contract. For example, according to the Russian legislation, such workers have to re-register and fill in migration cards every time they re-enter Russia despite having a valid employment or service contract.41x Ibid. Failure to do so will also put a worker in an irregular situation.
      The Union Economic Commission acknowledges the risks of irregularity that may arise during implementation of the Treaty as a result of diverging domestic legislation of member states. For this reason, the Commission has a permanent advisory committee that holds regular meetings to promote harmonisation of migration legislation of member states. According to the Eurasian Committee, in the nearest future it aims to introduce the following supranational provisions applicable to all nationals of member states regardless of the purpose of their entry that would take precedence over national legislation and bilateral treaties:

      • exemption from filling in migration cards on entering another member state;

      • increase in the duration of lawful stay without registration for up to 90 days;

      • exemption from border control checks at border entry points of member states (including at airports).42x Aliyev 2015, p. 70.

      3.3 Situation 2: Risk of Unlawful Engagement in Labour Activity

      As mentioned earlier, a worker’s engagement in labour activity will be lawful as long as he/she has a valid employment or service contract. The validity of the contract is established according to the domestic legislation of each member state. Thus, workers may fall into irregularity if they do not fully comply with the domestic legislation of an employment state. For example, while the Treaty does not state it explicitly, the European Economic Community’s (EEC’s) guidelines on migration legislation of Russia stipulate that workers are obliged to indicate “work” in their migration cards (unless they are using national passports) as their primary purpose of arrival. In Russia, there is no way to change the purpose of arrival in a migration card. It potentially puts at risk those nationals who enter another member state for a purpose other than work but then decide to enter into labour activity. To change the purpose of entry, a foreign national has to leave Russia and re-enter only after the lapse of a 180-day period since his/her arrival. Obviously, such conditions do not help a worker to secure a contract, and he/she may be tempted to stay and work illegally without one. Workers’ spouses too can find themselves in such a situation. According to the Russian legislation, worker’s family members should on arrival indicate “private visit” in their migration cards.43x Aliyev 2016b, p. 5. If at some point during their stay they decide to work, their employment will be unlawful unless they leave and re-enter the country.44x Aliyev 2016a, p. 51.
      Also, according to the Russian domestic legislation, the maximum duration of registration is only one year even if a contract is concluded for an indefinite term. Thus, if a working migrant fails to extend his/her registration once a year, he/she will be at risk of irregularity.45x Ibid.
      It should be noted that Russia has so far been the only state of the Union that provided information about the situations when a worker may fall into irregularity owing to the application of its domestic legislation. Thus, there is a risk that across all five states there may be other situations when a worker may fall into irregularity. This question is quite broad, requiring more extensive study, and will hence not be within the scope of this article.
      On the basis of the foregoing analysis of the Treaty’s migration provisions, it can be concluded that while the Treaty itself may have limited risk of pushing workers into irregularity, its many references to domestic legislation of member states may lead to different migration regimes owing to lack of their harmonisation. Thus, a worker may be at risk of falling into irregularity if he/she does not fully comply with domestic legislation.
      The following part explores whether the implementation and application practices in member states may create situations of irregularity.

    • 4 EAEU’s Common Labour Market: Law in Action

      Although the EAEU migration law may sound like an inspiring attempt to create one of the most integrated labour markets in the world, its implementation and application may not always bring the expected benefits to workers.46x Schenk 2017.
      This part explores several issues that may put workers at risk of irregularity as a result of the implementation of the Union’s Treaty in member states. The main issues are as follows:

      • insufficient compliance by member states with the Treaty’s provisions;

      • ignorance among law-enforcement authorities and lack of awareness among workers about the Treaty’s provisions, and

      • lack of accurate statistics on all workers in the EAEU space.

      4.1 Insufficient Compliance by Member States with the Treaty’s Provisions

      While the Union’s Treaty contains a few quite generous provisions that aim at stimulating free movement of labour, there are also many issues that are left for regulation by member states according to their domestic legislation and/or bilateral treaties with other member states. A problem arises when a Treaty refers a particular issue to be decided according to the national legislation of a member state, but the member state has not yet enacted new legislation or has not yet updated its domestic legislation to comply with the Treaty migration law. There is criticism that some states may be intentionally delaying the implementation of the Treaty.47x Ibid. Schenk, for example, argues that some member states are pursuing disparate goals at the domestic and international levels, being unwilling to open their border to low-skilled migrants while at the same time committing themselves to promoting a common labour market. To manage these goals, member states do not fully implement EAEU commitments into domestic law and may intentionally leave gaps in domestic legislation, leaving it underdeveloped and bureaucratic to minimise the number of EAEU’s workers who could benefit from the Treaty regime.
      For example, although Kyrgyzstan became a full member of the EAEU in August 2015, Kazakhstan has still not made relevant changes in its domestic legislation in support of the free movement of Kyrgyz nationals. In particular, Kazakhstani migration authorities still insist that Kyrgyz workers’ family members register with local police within five calendar days of their arrival, a position that is clearly contrary to Article 97(6) of the Treaty, which states that both workers and their family members shall be exempted from the obligation to register if they stay for less than 30 days. The Kyrgyz consulate in Kazakhstan continuously raised this concern with the Kazakhstani authorities, and in April 2016 the Kyrgyz MFA even threatened to shorten the period of stay for Kazakhstani citizens in Kyrgyzstan in retaliation for non-adherence to the EAEU norms.48x Kuramyssova 2016.

      4.2 Ignorance Among Local Authorities, Lack of Awareness or Reluctance Among Workers

      Another issue that hinders the proper implementation of the EAEU Treaty is ignorance among law-enforcement officers of the newly enacted domestic legislation that implements the Treaty. According to an empirical study carried out by the International Federation for Human Rights (FIDH) in South Kazakhstan in 2016, it was revealed that in practice many Kyrgyz workers still face difficulties with regularisation of their status. For instance, the tax services of Enbekshikazakh district in the Almaty region of Kazakhstan refused to take into account the contracts that some Kyrgyz migrants had signed with their employers (legal entities) and asked them to use the format provided for domestic workers when they work for natural persons. Moreover, Kyrgyz nationals may not be aware of these procedures either and may not demand that a written contract be signed. The 2016 FIDH report further describes that several Kyrgyz migrants who had been residing in Kazakhstan for over a decade confided to the FIDH that they continue to go back and forth to Kyrgyzstan every two months to extend their registration and pay bribes to the migration police and said that everyone in their village is aware of their situation.49x Shormanbayeva et al. 2016, p. 7. Finally, some workers may be reluctant to enter into formal labour contracts because labour migration in the CIS region “has long been dominated by informal processes that have little to do with the policies that aim to regulate them”.50x Schenk 2017.
      A similar situation exists in Russia, where, according to an empirical research study carried out in Moscow, up to 79% of Kyrgyz workers continue to work without a contract, either because they do not believe (or know) it is necessary or because their employers do not want to provide one. Also, many employers in Russia have been reluctant to sign contracts since it would formalise the working relationship, thereby obligating them to pay taxes and social insurance.51x Ibid.
      On the other hand, as discussed previously, the EAEU Treaty stipulates that workers have to enter into valid employment or service contracts to maintain a regular status.52x See above Section 3.3, Situation 2: Risk of unlawful engagement in labour activity. The problem with this provision is that, as already discussed, the overwhelming majority of the labour migrants in the EAEU are low skilled and traditionally do not enter into contracts either because of lack of knowledge about their rights or because their employers often deny giving them any contracts. Thus, linking a worker’s status to a formal employment contract could put the legal status of EEU migrants in jeopardy.53x Schenk 2017. Moreover, there were reports that several of the government-affiliated migration centres in Moscow misled EAEU workers into believing that they did not need to complete procedures for getting a patent or obtaining permission to work. Such advice neglects a crucial condition of the EAEU Treaty for free movement of labour, which is obtaining a labour contract.54x EAEU Treaty, Art. 97(1).
      In February 2017, the Russian Ministry of Interior communicated that those nationals of the member states who work without a labour contract would be deported.55x Fochkin 2017. This message was later broadcast by the media of other member states. However, this may hardly lead to substantial changes. Nor is there any available information from the EAEU as to how individual member states plan to enforce that Treaty provision on labour contracts, especially given that low-skilled migrants may be reluctant to pressure their employers to give them such contracts, fearing loss of a job.
      It can be concluded that at the moment the EAEU regulations do very little to encourage migrants working in the informal sector to legalise their status since signing a labour contract presents a barrier that many foreign workers will not be able to overcome.56x Schenk 2015. Moreover, given the generally insufficient level of democracy, respect for human rights and the rule of law principles in the region, the low-skilled workers will hardly be raising concerns about their status and seeking legal remedies from law-enforcement agencies. This situation will not change unless the governments carry out regular awareness-raising campaigns to inform workers about their rights and actively address the problem of unscrupulous employers who refuse to sign a contract with their employees in order to escape paying taxes and avoid incurring other responsibilities towards workers under other labour regulations. But such a solution may again not be in the interest of those states that are unwilling to increase labour immigration in their territory.

      4.3 Lack of Accurate Statistics on Workers of Member States

      It should be noted that data on the migration trends within EAEU member states is largely unavailable. Only Russia and Belarus report relevant data and statistics, whereas Kazakhstan, Kyrgyzstan and Armenia do not maintain any statistics on external labour migration of their nationals.57x Eurasian Economic Commission 2016. The Russian migration services also started to collect data on the number of submitted contracts since 2015, while Kazakhstan’s statistics agencies do not provide such data. However, given that the majority of low-skilled labour migrants have been continuously working without any labour contract, this data might be seriously distorted. For example, according to the statistics provided by the EEC, 4,000 workers from other member states entered Belarus in 2015; around 5,000 entered Kazakhstan in 2014, and 955,000 entered Russia in 2015.58x Aliyev 2016a, 38. The data for Russia appears to be realistic, whereas that for Kazakhstan appears to be quite improbable and raises suspicion that the authorities may have provided distorted information.
      Distorted statistics may signify a bigger problem of workers from other member states being intentionally excluded from the official statistics on labour migration so as to limit their benefits under the EAEU Treaty.

      4.4 Reasons for Non-compliance

      Having identified some of the major issues that may put workers in an irregular situation in the EAEU, we need to understand why the governments of the destination member states may be interested in limiting their responsibility towards workers from other member states and pushing them into irregularity.
      As has been noted in Part One, regulation of labour migration has not been the priority for the Union’s founding states. Kazakhstan’s reluctance to implement EAEU Treaty’s obligations on working migration could indicate that the presence of a high proportion of informal migrants is beneficial for the state economy where low-skilled migrants are heavily used in strategic economic sectors such as construction and agriculture. For example, according to the 2015 Kazakhstani Law on State Purchases, if the government wants to build a new primary school, it has to organise a bid among local contractors, and the company that offers the lowest quotation of their fees shall be the winner of the bid.59x Law of the Republic of Kazakhstan on State Purchases No 434-V dated 4 December 2015. Thus, big local businesses reap more profits by hiring cheap and readily available labour migrants from neighbouring states rather than recruiting high-skilled specialists. The government does not interfere with employment practices of its contractors and turns a blind eye to such practices as long as a school is built on time. Moreover, the government is interested in keeping the number of official migrants low, thus avoiding an outcry among the public and unemployed domestic workers, who will hardly agree to work for the same low remuneration as do the migrants.
      As for the Russian case, the neglect of the EAEU workers may be explained by the fact that these flows, though substantial, are still smaller than those from other CIS states, and for this reason insufficient attention is given to developing procedures and disseminating information for these EAEU workers. The second reason is that, like Kazakhstan, Russia tries to keep official numbers low to avoid spurring unrest among the public.
      While these reasons are not exhaustive, it is argued that destination states will not be able to continuously avoid their responsibilities towards workers under the Treaty. Moreover, such a non-compliance policy is quite dangerous and may put the very existence of the Union at risk. Insufficient compliance with Treaty obligations may eventually backfire by creating and escalating conflicts between the EAEU’s destination and sending states whose economies and political stability depend largely on the remittances that they receive from their nationals abroad, and such remittances increase if workers maintain a regular status. If the sending states, current and new, see that other member states are defaulting on their Treaty obligations to ensure the free movement of labour, they may quit the Union.

    • 5 Situation of Migrant Workers from Other CIS States

      This Part discusses the situation of migrant workers in Russia and Kazakhstan from other non-member CIS states since the EAEU has become fully operational. Owing to the visa-free regimes between all nine states of the CIS, the migrant workers from non-member states arrive legally and generally register with local migration authorities on time. Irregularity occurs when they engage in labour activity without first obtaining a work permit or entering into valid employment/service contracts.60x Sadovskaya 2014. However, as will be explored later, low-skilled migrant workers from CIS states may have no way to engage in lawful labour activity because of the absence of relevant legislation.

      5.1 The Russian Federation

      According to the official statistics, as of 1 January 2017, there were 9.7 million foreign nationals in Russia, 85.1 % of whom were nationals of the CIS states. Furthermore, in 2016, 1.7 million work permits were issued, including 1.5 million permits (patents) for low-skilled workers and 41,000 work permits for skilled and high-skilled workers. This was 15% more compared with all work permits issued in 2015.61x See website of the Ministry of Interior of the Russian Federation (2017) Statistics Data on Migration Situation in the Russian Federation in 2016. https://xn--b1aew.xn--p1ai/Deljatelnost/statistics/migracionnaya/item/9266550/. Accessed 25 April 2018. Yet the number of all workers, including those in irregular situation, may be much larger than 1.7 million. For example, in 2013 the Federal Migration System (FMS), the predecessor, reported that 2.5 million irregular migrants were revealed in that year.62x Ni 2015, p. 24. Still, the FMS acknowledged that the number of irregular migrants might be as high as 3.6 million.63x Ibid. This information is supported by other unofficial reports, according to which the number of all labour migrants in Russia amounts to 5-6 million people, or 7% of the economically active population.64x Karabchuk et al. 2014, p. 8.
      To counter irregular migration, Russia gradually developed and introduced rather liberal legislation that encouraged the use of both high-skilled and low-skilled workers. Currently, there are three main ways by which foreign workers can engage in lawful labour activity in Russia:

      1. when a prospective employer (legal entity) obtains a work permit well in advance of the arrival of a migrant worker based on a quota system; this way is usually used to attract only high-skilled labour since an employer has to prove that there is no local worker with the needed qualifications;

      2. when a migrant worker can obtain a work permit (a patent) on his/her own and then work only in households for physical entities;

      3. finally, foreign nationals can obtain a certificate of an individual entrepreneur and then work as an independent contractor for both legal entities and natural persons.65x The Federal Law of the Russian Federation N 115 dated 25 July 2002 on Legal Status of Foreign Nationals in the Russian Federation. http://www.consultant.ru/. Accessed 13 April 2018.

      The second way of employment, through patents, has been most widely used by low-skilled workers from the CIS states owing to relevant ease of application and a simplified procedure of taxation, involving the payment of a flat fee. Before 1 January 2015, an applicant for a 1-year patent had to pass a medical examination, fingerprinting, purchase medical insurance and pay a flat patent fee that was equal to 17 USD per month regardless of the region of employment.66x 60 Melnikova 2014. The total cost of obtaining a one-year patent was thus about 300 USD. Apparently, these were relatively feasible conditions because of the 2.7 foreign workers registered in 2017, almost a half – 1.3 million – had a patent, and the rest had work permits issued as part of the quota system for high-skilled workers.67x Sadovskaya 2014.
      The situation with obtaining patents has changed dramatically as of 1 January 2015, when Russia introduced new restrictive policies regarding migrants from the non-EAEU space. It became much harder and costlier to get a patent for nationals of those CIS states that were not members of the EAEU. Now, CIS workers have to satisfy additional requirements: pass exams in the Russian Language, Russian History and Introduction to the Federal Law; pass a medical examination; purchase medical insurance; and pay for a work permit.68x Eurasian Analytical Club Report 2016. All these procedures have to be completed within 30 days of arrival. Furthermore, migrant workers have to indicate “work” in their migration cards as a mandatory requirement for obtaining a patent. Moreover, the basic patent fee has increased from 17 USD to 21 USD and is no longer flat but varies across regions. For example, in Moscow, the patent fee is around 40 USD per month.69x See website of the Federal Tax System on Calculation of Patent Fee. https://patent.nalog.ru/info/. Accessed 25 April 2018. As a result, the cost of a 1-year patent and associated services skyrocketed to 700 USD,70x Sluzhba Novostei 2016. prompting many migrant workers from Central Asia to work without one, thus shifting them into Russia’s “shadow economy”,71x Ryazantsev 2016. irregularity and risk of abuse and exploitation. Moreover, in 2014 the Russian authorities began a sweeping crackdown on illegal migration by barring entry to foreigners for committing any administrative offence, not only in the area of migration but also for incorrect parking.72x Migranto.ru 2017. Foreign workers exceeding the authorised period of stay (90 days every 180 days) and working without a patent have been deported and banned from re-entry for 3, 5 or 10 years. However, such restrictions did not apply to nationals of the EAEU.73x Shustov 2016. According to the FMS, in 2015-2016 1.6 million foreigners74x Ryazantsev 2016. were deported and barred from entering Russia; the majority of them were from Uzbekistan (500,000), Tajikistan (325,000 people)75x The number of deported Tajiks increased by 60% compared with a previous year. See Sokov 2016. and Kyrgyzstan (100,000 people) when it was not yet a member of the EAEU. By comparison, in 2013 only 82,000 out of 2.5 million detected irregular migrants were deported.76x Ni 2015, p. 24.
      Such restrictive measures are arguably used to pursue two objectives: on the one hand, Russia exerts pressure on other CIS states, mainly Uzbekistan and Tajikistan, which had earlier been invited to join the EAEU but which refused allegedly fearing that the EAEU would in effect become another USSR.77x Sputnik Tajikistan 2017. On the other hand, Russia’s economy had already been seriously affected by the Western sanctions and 200% devaluation of the national currency in 2014. The restrictive policy indeed affected the number of registered migrant workers from the Central Asian non-member states, resulting in their decline. For example, the number of migrant workers from Uzbekistan and Tajikistan in 2016 decreased by 20% and 12%, or by a total of 500,000 people. The number of all nationals from Uzbekistan and Tajikistan who entered Russia in 2016 totalled 1.8 million and 788,000, respectively,78x Shustov 2016. while the number of workers from Kyrgyzstan increased by 11%,79x Sokov 2016. bringing the total number of Kyrgyz workers in Russia to 600,000.80x Migranto.ru 2017. However, this does not necessarily mean that the number of Uzbek and Tajik workers in Russia indeed declined by half a million; rather, these migrants may have shifted into the informal labour market and become irregular. If the trend continues, the EAEU labour market will become practically inaccessible for nationals of the Central Asian non-member states, whereas free labour movement will become a privilege only for nationals of the EAEU space.

    • 5.2 Kazakhstan’s Migration Regime

      Contrary to the Russian situation, no changes were introduced to the Kazakhstani migration legislation as of 1 January 2015. As noted in Part One, labour migration legislation of Kazakhstan is much less developed than that of its Russian counterpart. Its greatest failure is that it completely ignores immigration of low-skilled labour and provides no real opportunities for their legal employment. At the same time, low-skilled migrants are the largest group of working migrants who arrive from the southern states of Central Asia – Uzbekistan, Kyrgyzstan and Tajikistan. This approach is quite irrational given that there are a number of niches on the domestic market where labour demands cannot be satisfied by local nationals or high-skilled workers. For example, the strongest demand for low-skilled labour is in construction projects and the agriculture industry: growing and collecting vegetables, cotton and tobacco. During the Soviet era, school and university students were actively engaged in cotton picking.81x Ni 2015, p. 9. This practice, fortunately, stopped in 1991, as soon as the country became independent, but this is true only for nationals of Kazakhstan. Now the working migrants, including their children, from Kyrgyzstan and Uzbekistan, work in these cotton fields.
      Interestingly, local employers and state officials acknowledge the need for labour migrants. For example, in 2013 one cotton-picking enterprise in South Kazakhstan reported that it needed 50,000 more people in addition to its 80,000 staff to collect cotton on time. Thus, it had to recruit Uzbek nationals, in violation of migration laws, to satisfy its demand for labour.82x Sadovskaya 2014. This situation has existed for many years, but no changes have been introduced to alleviate the situation of low-skilled workers. As a result, migrants from Uzbekistan find themselves in an irregular situation and are subject to abuse and working in indecent and degrading conditions.83x Shormanbayeva et al. 2016, p. 14. Unscrupulous employers pay them very little and may even refuse to pay them their salary in full. What is worse is that low-skilled Uzbek and Tajik migrants cannot complain anywhere or access local courts because their status is regarded as illegal, and if they do complain they will face big fines and/or deportation and will be banned from re-entry for five years.84x Ibid., p. 21.
      The only positive change favouring low-skilled migrants occurred in 2014 when Kazakhstan introduced a patent system similar to the one in Russia. However, this system targeted only those migrants who worked in natural persons’ household, whereas the majority of low-skilled migrants are employed by legal entities. Moreover, the system was fraught with cumbersome bureaucratic procedures and so far has failed to help thousands of low-skilled migrants to regularise their status.85x Dave 2014. It should be noted that the Kazakhstani authorities do not publish any data on the number of issued patents as in Russia, and for this reason too, it is difficult to evaluate the results of this measure. Yet in 2016 one empirical research study among Kyrgyz household workers found that up to 90% of them did not have labour contracts and were subjected to exploitation such as long working hours and lack of days off.86x Sadovskaya 2014.
      It is hard to establish the real number of migrant workers in Kazakhstan. According to the official statistics, in 2016 the government issued only 36,000 work permits for high-skilled working migrants, or 0.7% of the economically active population.87x Lee 2017. The official Statistics Agency does not provide any information on the number of working patents. At the same time, the Kazakhstani Ministry of Interior acknowledged that there are about 300,000 low-skilled migrants with irregular status in Kazakhstan who do not reveal their true purpose on arrival in the country.88x Semenova 2014. Other reports put the figure of irregular migrants much higher, at 1 million.89x Shormanbayeva et al. 2016, p. 9. Despite this, the government has taken no action to resolve the situation, which has existed for more than ten years. Also, local migration police officers rarely deport irregular migrants. For example, in 2013 Kazakhstani migration authorities identified only 5,860 working migrants with irregular status and deported only 2,014 people.90x Ni 2015, p. 24. Obviously, this number of identified irregular migrants vastly understates the more likely number, 300,000, of irregular migrants.
      This situation may imply that the government is interested in keeping status quo for political reasons: on the one hand, the official statistics show only a small number of foreign workers, who are all high-skilled specialists, and can thus avoid accusations from the local population of favouring foreign over domestic workers . On the other hand, the central authorities are very well aware of the lack of labour resources in strategic economic industries, such as construction and agriculture, that cannot be satisfied by the local population. As discussed in Part Two, cheap migrant labour helps authorities spend less budgetary funds on state projects.
      The only category of low-skilled migrants whose situation has improved in Kazakhstan is that of nationals of Kyrgyzstan after it became a member of the EAEU. According to the official statistics of Kyrgyzstan, there are over 110,000 Kyrgyz workers in Kazakhstan.91x Migranto.ru 2017. However, as has been discussed in Part Three, at the local level, not all migration authorities are aware of the changes in the status of Kyrgyz nationals and subject them to similar harassment as they do other migrants with irregular status. Here, the Ministry of Foreign Affairs of Kyrgyzstan is actively involved in exerting pressure on Kazakhstani authorities to bring the treatment of Kyrgyz workers and their families in line with the EAEU law.
      On the basis of the foregoing analysis, it can be concluded that in both Russia and Kazakhstan the nationals of other EAEU’s member states were in a substantially more advantageous position than those of non-member states. Furthermore, these two countries adopted diametrically different approaches to achieve this result: Kazakhstan has continuously failed to introduce any effective measures to regularise low-skilled migrants, whereas Russia has introduced restrictive migration policies and engaged in fierce deportation and blacklisting of millions of irregular migrants from other CIS states, mainly Uzbekistan and Tajikistan, who had refused to join the EAEU. On the other side of the coin, the EAEU’s functioning has pushed even more migrant workers into irregularity and exacerbated irregular migration and discrimination among migrant workers in the post-Soviet area. Given that Russia’s and Kazakhstan’s economies still depend on the labour resources of non-member states, and vice-versa, one may only wonder whether, amidst the significant economic decline in most of the CIS states, more CIS states, including Central Asian Uzbekistan and Tajikistan, may choose to join the EAEU membership as a survival strategy.

    • 6 Conclusions

      In the post-Soviet space, the creation of the EAEU has resulted in a dual migration regime: very liberal and advanced towards the nationals of member states and rather restrictive towards all other third-country nationals, including those from the visa-free Central Asian states. However, while the EAEU Treaty itself does not contain serious risks of putting workers in an irregular situation, its ineffective implementation in member states and lack of harmonisation of domestic migration laws and policies elevates the risk of pushing both the nationals and the non-nationals of the EAEU into irregularity. On the one hand, the low-skilled workers of sending member states (e.g. Kyrgyzstan) may now benefit from the new liberal migration regime by regularising their status and avoiding exploitation and abuse in destination member states. However, a low level of legal awareness among the low-skilled workers, together with generally low respect towards human rights and the rule of law principle in the region, may still prevent workers from enjoying their rights under the Treaty regime and force them to continue working in the informal economy. Thus, more time and more systemic changes in the peoples’ mentality and political regimes may be needed before the Treaty achieves its aim of creating a truly effective common labour market where all nationals may engage in regular labour migration and enjoy the protection of their migrant and human rights. As for the migrant workers from non-member states in Central Asia – Uzbekistan and Tajikistan – they have been put in a much more disadvantageous situation by the Treaty regime, and many of them have been pushed into the “shadow economy” and irregularity, where they are at risk of exploitation and abuse.
      Finally, the article exposed the potential risk of tensions among the sending and destination member states of the Union. Insufficient compliance by destination member states with their Treaty obligations in good faith may be quite dangerous, putting at risk the very existence of the Union by escalating conflicts between the EAEU’s destination and sending states whose economies and political stability largely depend on the remittances that they receive from their nationals abroad.

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    Noten

    • 1 Ni 2015.

    • 2 Treaty on the Eurasian Economic Union (adopted 29 May 2014, entered into force on 1 January 2015) (The EAEU Treaty), Arts 1-2.

    • 3 Ibid., Art 4.

    • 4 The EAEU Court is open only to member states, their legal entities and individual entrepreneurs. Nationals, including workers, do not have access to it.

    • 5 Vinokurov 2017, p. 70.

    • 6 Ibid., p. 54.

    • 7 See Website of the EAEU. http://www.eaeunion.org/#about. Accessed 20 April 2018.

    • 8 Zaionchkovskaya 2001.

    • 9 Sadovskaya 2016, p. 17.

    • 10 Ni 2015.

    • 11 Ibid, pp. 7,10.

    • 12 Rules for confirmation of the solvency by foreigners and stateless persons applying for permanent residence permits in the Republic of Kazakhstan during their stay in the Republic of Kazakhstan, approved by Decree of the Government of the Republic of Kazakhstan dated 26 November 2003 # 1185. https://adilet.zan.kz/rus/docs/P030001185_#z4. Accessed 1 June 2022.

    • 13 In 2022, 1 MCI is equal to 3,180 KZT. https://online.zakon.kz/m/document?doc_id=1026672. Accessed 1 June 2022.

    • 14 Shormanbayeva et al. 2016, p. 19.

    • 15 Aliyev 2016b, p. 7.

    • 16 EAEU Treaty, Art. 97(2).

    • 17 Ibid., Arts 97(1).

    • 18 Quota systems for hiring foreign workers are available in Kazakhstan and Russia and involve a rather complicated process when an employer has to prove that a local worker is not available to do the same job. Moreover, employers have to apply for work permits seven months (in the case of Russia) and five months (in the case of Kazakhstan) in advance prior to the year in which a prospective employee will be hired. In Kazakhstan, the process of granting or refusing quotas also suffers from non-transparency.

    • 19 Schenk 2015.

    • 20 Eurasian Analytical Club 2016.

    • 21 EAEU Treaty, Art. 98.

    • 22 Schenk 2015.

    • 23 Vinokurov 2017.

    • 24 Vinokurov et al. 2016, p. 10.

    • 25 Vinokurov 2017.

    • 26 EAEU Treaty, Art. 96.

    • 27 Ibid, Art. 96(5).

    • 28 Ibid.

    • 29 Agreement on Cooperation in Combatting Illegal Migration from Third Countries signed (adopted on 19 November 2010).

    • 30 Agreement between the Russian Federation and the Republic of Kazakhstan on Stay Arrangements of Citizens of the Russian Federation in the Republic of Kazakhstan and of Citizens of the Republic of Kazakhstan in the Russian Federation (adopted on 7 June 2012, entered into force on 23 January 2015).

    • 31 This issue is regulated by the domestic legislation of each state.

    • 32 Agreement between the Republic of Kazakhstan and the Republic of Kyrgyzstan on Stay Arrangements of Citizens of the Republic of Kazakhstan in the Republic of Kyrgyzstan and of Citizens of the Republic of Kyrgyzstan in the Republic of Kazakhstan (adopted on 11 May 2012).

    • 33 EAEU Treaty, Art 97(8).

    • 34 Ibid.

    • 35 Aliyev 2016a, p. 43.

    • 36 Aliyev 2016b.

    • 37 Ibid., p. 13.

    • 38 EAEU Treaty, Art. 97(5).

    • 39 Aliyev 2016b, p. 10.

    • 40 Aliyev 2016a, p. 51.

    • 41 Ibid.

    • 42 Aliyev 2015, p. 70.

    • 43 Aliyev 2016b, p. 5.

    • 44 Aliyev 2016a, p. 51.

    • 45 Ibid.

    • 46 Schenk 2017.

    • 47 Ibid.

    • 48 Kuramyssova 2016.

    • 49 Shormanbayeva et al. 2016, p. 7.

    • 50 Schenk 2017.

    • 51 Ibid.

    • 52 See above Section 3.3, Situation 2: Risk of unlawful engagement in labour activity.

    • 53 Schenk 2017.

    • 54 EAEU Treaty, Art. 97(1).

    • 55 Fochkin 2017.

    • 56 Schenk 2015.

    • 57 Eurasian Economic Commission 2016.

    • 58 Aliyev 2016a, 38.

    • 59 Law of the Republic of Kazakhstan on State Purchases No 434-V dated 4 December 2015.

    • 60 Sadovskaya 2014.

    • 61 See website of the Ministry of Interior of the Russian Federation (2017) Statistics Data on Migration Situation in the Russian Federation in 2016. https://xn--b1aew.xn--p1ai/Deljatelnost/statistics/migracionnaya/item/9266550/. Accessed 25 April 2018.

    • 62 Ni 2015, p. 24.

    • 63 Ibid.

    • 64 Karabchuk et al. 2014, p. 8.

    • 65 The Federal Law of the Russian Federation N 115 dated 25 July 2002 on Legal Status of Foreign Nationals in the Russian Federation. http://www.consultant.ru/. Accessed 13 April 2018.

    • 66 60 Melnikova 2014.

    • 67 Sadovskaya 2014.

    • 68 Eurasian Analytical Club Report 2016.

    • 69 See website of the Federal Tax System on Calculation of Patent Fee. https://patent.nalog.ru/info/. Accessed 25 April 2018.

    • 70 Sluzhba Novostei 2016.

    • 71 Ryazantsev 2016.

    • 72 Migranto.ru 2017.

    • 73 Shustov 2016.

    • 74 Ryazantsev 2016.

    • 75 The number of deported Tajiks increased by 60% compared with a previous year. See Sokov 2016.

    • 76 Ni 2015, p. 24.

    • 77 Sputnik Tajikistan 2017.

    • 78 Shustov 2016.

    • 79 Sokov 2016.

    • 80 Migranto.ru 2017.

    • 81 Ni 2015, p. 9.

    • 82 Sadovskaya 2014.

    • 83 Shormanbayeva et al. 2016, p. 14.

    • 84 Ibid., p. 21.

    • 85 Dave 2014.

    • 86 Sadovskaya 2014.

    • 87 Lee 2017.

    • 88 Semenova 2014.

    • 89 Shormanbayeva et al. 2016, p. 9.

    • 90 Ni 2015, p. 24.

    • 91 Migranto.ru 2017.


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