Although Kazakhstan attracts an estimated 700,000 to 1.2m short-term migrant workers annually – 85% of these from the neighbouring states of Uzbekistan, Kyrgyzstan, and Tajikistan – its migration law has traditionally lacked provisions allowing them to work legally. Widely, though mistakenly referred to as gastarbaitery, (the Russianised plural of Gastarbeiter), migrants enter as ‘visitors’ or ‘guests’ under the CIS visa-free regime, but lapse into an illegal or quasi-legal status upon taking up employment. Constrained by the 30-day term limit (citizens of Kyrgyzstan can now stay up to 90 days but not those of Uzbekistan or Tajikistan) they work by engaging in shuttle or circular migration.
Kazakhstan’s parliament finally passed a law in December 2013, which allows citizens of these three neighbouring states to work legally for a period of up to one year by obtaining a work permit, known as a patent. They will no longer have to depend on their employer for their legal status and registration. Earlier, migrants could work legally only if the employer was able to obtain the permission from the local akimat (administration) for hiring them. The complex, time-consuming and expensive procedure for obtaining this permit on the one hand, and the ease of hiring migrants ‘off the street’ on the other, had made it more usual for individual employers and small business to bypass the legal procedures.
Kazakhstan’s parliament finally passed a law which allows citizens of these three neighbouring states to work legally.
The growing volume of migrants’ remittances and the realisation that bribes and payoffs to officials and middlemen had been siphoning off potential budgetary revenues, have finally spurred the authorities to take steps to legalise working migrants, hence the patent. The Ministry of Economy and Budget Planning calculates that if 100,000 migrants buy a patent in the first year, then Kazakhstan will earn about $30m in tax payments, and up to 10 billion tenge (almost $55m) within a couple of years. Minister Dosaev put the number of illegal migrants at 300,000, an underestimate, while intimating that the possibility of legalisation through the patent system could benefit up to a million workers, bringing in revenues of about 50-80 billion tenge ($280-$500m) a year subsequently. But is this patent system one that actually works for Kazakhstan’s guest workers?
Obtaining the patent
The patent is limited to up to one year, and requires its holder to pay about 3700 tenge (about $24) a month, in advance by bank transfer or at the migration office. In effect, the monthly payment is a form of tax, calculated as being 10% of 37,000 tenge ($200) – the minimum amount which migrants are estimated to earn in a month. Migrants earning above this amount will pay a further tax, which will be calculated at the end of their term, although the mechanism for calculating the tax has not yet been made clear.
Migrants in Kazakhstan from the Fergana Valley, which spans Kyrgyzstan, Tajikistan and Uzbekistan. via Fergananews
Migrants are responsible for finding an employer, negotiating the pay, signing a work contract, and completing the paperwork. The wages payable to migrants are determined on the basis of mutual negotiation between the migrant and employer because the government in Kazakhstan has not set a minimum wage. Employers are absolved from paying employment taxes, but fines ranging from $360-600 are to be levied on those who violate these laws. They are also prohibited from hiring more than five migrant workers – a measure intended to combat the widespread practice of individual builders and property developers hiring several workers for construction as well as sub-contractors; and brigadiry doing the same.
Similar to the patent law in Russia, migrants can work only for an individual entity and not for a juridical one. This means that they are essentially confined to work in the domestic sphere where they can take on jobs such as gardening, construction or renovation of private homes and dachas, childcare, and cooking.
Kazakhstani authorities say that the procedure for obtaining a patent is both simple and efficient. After registering with the regional migration office within five days of their arrival, migrants seeking a patent have to: obtain an Individual Tax Number; conclude a formal agreement with the employer; pay the monthly fee; present these papers along with the passport, migration card, and a police clearance certificate to the migration office where they are registered; and then finally have their fingerprints scanned.
Kazakhstani authorities say that the procedure for obtaining a patent is both simple and efficient.
But, as is so often the case the world over, bureaucratic procedures are not always as simple and efficient on the ground as officials would have one believe. A correspondent of the newspaper Liter who accompanied migrants to see how they acquire the Individual Taxpayer Number and other documents necessary for obtaining the patent, reported that the actual process takes 1-2 weeks, and not 3 days as stated in official announcements. This causes tremendous problems for migrants who cannot work until they have obtained the patent. Since most migrants borrow money from relatives or friends in order to go abroad to work, they are under serious pressure to begin working immediately – with or without a patent. Moreover, many migrants may simply not know that they are not permitted to work until the patent has been issued.
These delays and this confusion may well just be signs of teething problems but it is migrants who are set to suffer because of them, not bureaucrats or politicians. ‘You can be sure that the migration officials, and regional district heads that keep tabs on migrants, and supply information to the police, will target migrants for inspection during this period, and find reasons to extract bribes and payoffs,’ said Damir, an Astana-based journalist, adding, ‘they deliberately leave these loopholes in the law.’ In other words, the conditions are rife for the emergence of intermediaries and brokers who already facilitate the informal employment of migrants in Kazakhstan.
Avoiding Big Brother
Conditions are rife for the emergence of intermediaries and brokers.
A further problem involving the patent is that it requires migrants to identify themselves to the state, and that is not as straightforward as one might imagine. Forced to remain illegal for so long in their working lives, migrants’ entire life experience has taught them to distrust state institutions, and their functionaries. They try to be as invisible as they can, and prefer verbal agreements to written contracts so as to leave no imprint behind. ‘They’re mortified by the written word’ said Mominova, a Senior Police Commissioner in Shymkent, whose section collaborates with a local NGO, Sana Sezim, on combating domestic violence and non-consensual bride kidnapping. Herself an ethnic Uzbek, she said that she tries to help out ‘her boys’ who come here to earn a livelihood but do not know the laws, and avoid all contact with officials.
Gastarbaitery are vulnerable to abuse by employers. Bekzod Ikramov from Uzbekistan was kept as a slave. via FergananewsIt is not surprising that migrants react with fear and apprehension to the requirement to provide a mandatory police clearance certificate and fingerprinting. Kazakhstani authorities are yet to carry out a campaign which reassures migrants that they are not being targeted for additional surveillance and criminalisation. Migrants fear contacts with any authority – be it officials or NGOs. No more than 2-3% of migrants approach NGOs or international organisations for advice, support or help solving problems. Anna Ryl’, director of the NGO, Korgau, in Astana mentioned that, ‘if migrants come to us and launch a complaint, then we can represent their case to the Migration Police and demand a response. But they just don’t bother – it is easier for them to pay bribes than bother to fight.’
Migrants fear contacts with any authority – be it officials or NGOs.
Migrants make the best of having to engage in circular or shuttle migration by working out flexible and informal job arrangements. Several cafés and restaurants especially in the southern cities of Shymkent, Turkestan, and Taraz have a succession of cooks, caterers and cleaners, often from the same mahalla or extended family in Uzbekistan, who rotate jobs amidst their networks. At one chaikhana in Shymkent, the waiter apologised to me for the absence of some of the dishes listed on the menu by saying that the cook had had to rush back to Uzbekistan.
Gulya, who has a small letting agency in Almaty managing about two dozen apartments, employs a number of Uzbek women from the same extended household who work as cleaners by taking turns. The women enjoy the security of job retention by working every alternative month in Almaty while also being able to look after the children and household in Uzbekistan. If these workers were to legalise themselves by buying a patent, they would be required to pay about $24 monthly tax. Migrants in cleaning and catering jobs earning $250-300 a month on average would be forced to spend an additional 8-10% of their wages in taxes. Alikhan, who hires Uzbek workers for his construction brigade, contrasted their frugal habits and cost-conscious behaviour with the impulsive ways of the wilful nomads (Kazakhs like himself) who lavishly spend the money at hand and do not worry about tomorrow: ‘They save every penny to take it home: they bring all the ingredients with them for plov: rice, oil, meat, dry fruits, and refrain from buying any fresh produce here,’ he noted.
While the patent is designed to help new migrant workers to work legally, it does not address the difficulties faced by those who are already working in Kazakhstan but lack legal status. An unspecified number of ‘undocumented’ migrants or persons without a regulated status –many from Uzbekistan – are living in the regions adjacent to the border without valid documents. They remain in Kazakhstan with the support of family networks, earn a living, and use illegal checkpoints to cross the border to visit relatives.
Nadira, from Andizhan, who was introduced to me by my local contact as the person ‘who makes the best naans (bread) in the locality,’ has been living in Shymkent for almost a decade now. She was one of those who benefited from the migrant regularisation programme or amnesty carried out by Kazakhstan in 2006. The hastily conducted measure, which resembled a ‘one day act’ rather than a programme, resulted in legalising about 164,000 migrants who had overstayed their term, a much smaller number than anticipated. Like many, Nadira had mistakenly assumed the amnesty to be an authorisation to work and remained in Kazakhstan. But it was not, and so she remains a quasi-legal limbo. The local Uzbek from whom she rents a room and her work place handles all practicalities for her. She has good relations with the local district officials who keep her safe. She has not been back to Uzbekistan, at least not officially, though she later admitted to using illegal checkpoints to visit her ailing mother. In the past decade all three of her brothers have left for Russia, and she was contemplating joining them there. Migrants such as Nadira manage their lack of documentation and ‘illegality’ through a reliance on networks and informal, quasi-legal methods while also keeping an eye for better work options elsewhere.
A patent for informal employment
While the patent system has allowed migrants in Russia to free themselves from depending on an employer, and acquire a legal status, numerous other laws and regulations work to keep them in a state of quasi-legality, maintaining their vulnerability and deportability.
Instead of reducing the informal economy of labour migration… patent has only revitalised it.
The experience of Russia also shows that instead of reducing the informal economy of labour migration, which hinges on keeping migration semi-legal, the patent system has only revitalised it. By offering legal status and economic security to migrants who are employed in the domestic sector, the patent has opened up more avenues for migrants to work illegally for juridical entities. More and more migrant workers in Russia are buying a patent in order to be able to remain in the country for up to a year. In other words, after legalizing themselves through a patent, many go on to work for a juridical entity obviously without a legal contract. Some work part time on a patent, and the remaining time in unauthorised employment. There is a distinct likelihood of this pattern being replicated in Kazakhstan.
But only time will tell if the patent system has delivered the desired aims. At best, it is a partial measure, limited in scope and adopted too late to be able to limit the deeply entrenched shadow economy of labour migration.