Mapping of policies affecting female migrants and policy analysis: the Slovenian case

Transcription

1 Mapping of policies affecting female migrants and policy analysis: the Slovenian case Mojca Pajnik, Neža Kogovšek, Saša Zupanc Working Paper No. 8 WP1 October 2006 Integration of Female Immigrants in Labour Market and Society. Policy Assessment and Policy Recommendations A Specific Targeted Research Project of the 6th Framework Programme of the European Commission Peace Institute, Institute for Contemporary Social and Political Studies Ljubljana Metelcova 6, 1000 Ljubljana, Slovenia mojca.pajnik@mirovni-institut.si

2 Table of Contents Introduction 1. General policies and their effects on female migrants 1.1. Policies regulating employment in sectors with high participation of migrant women Policies regulating domestic and care work Policies controlling prostitution 1.2. Unemployment policies 1.3. Social policies for re-entering the labour market 1.4. Policies combating illicit work 2. Policies targeting migrants 2.1. Migration and naturalization policies, policies regulating residence and work Residence Work 2.2. Integration policies addressing migrants Language Education Health 2.3. Implementation in the national context of EU employment policies aiming at the integration of migrants in the labour market 2.4. Policies giving access to political rights and participation and enabling migrants to establish associations The right to establish associations Voting rights The right to property 2.5. Anti-racism, anti-discrimination, equal opportunities and affirmative action policies 2.6. Policies combating illegal immigration 2.7. Policies combating trafficking of human beings 2

3 3. Specific institutions designing migration and migrants integration policies 4. Bottom up activities (NGOs, associations of female migrants, human rights movements, women s movements) 5. Summary/Discussion References 3

4 Introduction Having considered periodic reports submitted by Slovenia, the United Nations Treaty Bodies determined that the provisions of Slovene legislation on migration are in general in accordance with international conventions. 1 Based on obligations, Slovenia has also followed EU regulations and directives, and has been preparing national legislation amendments to these. Regressions, however, can be noted in the process, and it is questionable whether certain EU documents are now in accordance with previously adopted international conventions. For example, in 1999 Slovenia established its asylum system following the 1949 Geneva Convention and the 1967 New York Protocol. In recent years, the EU has become very active in adopting legislation in the area of asylum law, and when countries like Slovenia began transposing the EU legislation into their national legal systems, the level of procedural standards and the level of rights began to decrease. The question therefore is whether the standards are still in accordance with UN Conventions (one such document is the Council Directive 2005/85/EC on minimum standards on procedures in member states for granting and withdrawing refugee status, particularly its Article 4). EU legislative frameworks have allowed a lowering of rights in asylum applications procedures, or, for example, in the area of equal opportunities for women and men, such that they no longer provide sufficient oversight of gender issues, or of vulnerable groups of migrants and are not sensitive to the difficulties migrants face in everyday situations. Slovene legislation is foremost conditioned upon either citizenship or permanent residence, and is generalized in terms of gender perspective. Among the major obstacles migrants face is providing evidence of permanent employment, which is a condition for getting a permanent residence permit and, consequently, citizenship status. Migration policies often disregard groups of people who are among the most vulnerable, namely, people in transit, or without statuses, migrant women among them. 1. General policies and their effects on female migrants Policies regulating employment in sectors with high participation of migrant women Policies regulating domestic and care work The Social Security Act 2 contains a provision on family assistance which includes family support services, assistance at home, and social services. Assistance for the home includes professional advice and help with relations among family members, child care, and family training in life skills. Assistance at home includes nursing in case of disability, old age, and other cases in which at-home services can be a substitute for institutional care. Social services include assistance with domestic and other tasks in case of birth, sickness, disability, old age, accidents, and other situations in which assistance is necessary for the inclusion of a person into everyday life (Article 15). The Act is supported by the 1993 Resolution on the Grounds for the Formation of Family Policy, 3 which, among other measures to encourage the formation of families and provide for their welfare, introduces programs to create conditions for improving the quality of family life, outlining the obligations of parents, and encouraging equal responsibility for both parents. According to the Resolution, family development is stimulated by at-home services that as stipulated in the Act include assistance with housework, child care, and help for elderly, sick, and disabled persons. 1 See e.g. Human Rights Committee: Concluding observations (CCPR/CO/84/SVN); Committee on Economic, Social and Cultural Rights: Concluding Observations (E/C.12/SVN/CO/1), Committee on Elimination of Discrimination against Women: Concluding Observations (A/52/38/Rev.1, paras ); Committee on the Elimination of Racial Discrimination: Concluding Observations (CERD/C/62/CO/9). 2 Zakon o socialnem varstvu (ZSV-UPB1), Official Journal RS 36/2004, SOP Resolucija o temeljih oblikovanja družinske politike, Official Journal RS 40/

5 The recent National Social Care Program for the Period , 4 among the strategies to improve social inclusion of individuals and the coherence of Slovene society, mentions the need to improve access to services and programs and to increase efficiency of distribution of financial social aid. In addition, the program mentions promotion of solidarity and decrease of inequality, prevention of intolerance, and advocacy of principles of non-discrimination in all spheres of life and work. These strategies include supporting family and other social networks with the care of people in need. It aims also at the development and introduction of new models of joint care, and mentions special care for vulnerable groups, such as children and the elderly, people with disabilities, groups at high risk for poverty, homeless, people with mental disorders, Roma, and victims of violence. As one of several strategies for developing new models of joint care, the Program would assure expansion of services and social care programs, which would enable joint care, e.g. help at home, mobile services. Furthermore the Program proposes the development of a model for care in another family, though, as can be observed throughout the document, the proposals lack concrete and binding responsibilities. Among the problematic points of the Program is the fact that it privileges the family as an institution, and not as a household or an individual. This can result in various forms of discrimination and disadvantage: for instance, in the case of same-sex households or disabled individuals who would rather live independently than within family bonds. Furthermore, the Program does not mention vulnerable groups, such as migrants, asylum seekers, and refugees. When one considers the Program in relation to current policy-making, it becomes obvious that increasing efficiency at distribution of social benefits can lead to repressive treatment and the demoralisation of unemployed persons. In addition, the Program is full of vague phrases, such as promotion of solidarity, which lack concrete plans for realization. None of the laws concerning domestic and care work provides mechanisms that would supervise the actual situations of the migrant women employed in this sector, e.g. working in cleaning. Although their employment is legal, it is valid only for a definite period. This gives employers power to control migrant women by threatening to hire another person if they get ill or complain Policies controlling prostitution Until 2003, prostitution was prohibited under The Act on Criminal Offences against Public Order and Peace. 5 With amendments to this act, 6 prostitution was decriminalised 7 and could no longer be considered a criminal offence. Recently, the government introduced a Proposal for Protection of Public Order and Peace Act, 8 which is intended to replace the Act on Criminal Offences against Public Order and Peace. Despite the abolition of the criminal offence of prostitution, this proposal again anticipated a misdemeanour of offering or imposing sexual services in public places, with fines from SIT 50,000 to SIT 100,000 (Article 11), which in fact meant that prostitution would again be a criminal act. However, before the act was adopted, the stated provision was erased from the proposal (in July 2006). 4 Previously, the National Social Protection Program until 2005 (provisional translation) (Nacionalni program socialnega varstva do leta 2005, Official Journal RS 31/2000, SOP ) committed the state to assure public services that included assistance to families at their home (which can include help with care for children) and assistance to families in household upkeep (this could include help with housework). According to the program, the public services were supposed to be offered by public social-security custodial institutions, established by the state or municipalities, NGOs that gained concessions for performing public services and other legal and private persons with this concession. 5 Zakon o prekrških zoper javni red in mir (ZJRM-UPB1), Official Journal RS 110/2003, 69/2003, SOP Zakon o spremembah zakona o prekrških zoper javni red in mir (ZJRM-B), Official Journal RS 69/2003, SOP This means that prostitutes gained citizens rights on choosing whether or not they would be involved with prostitution. 8 Zakon o varstvu javnega reda in miru, (ZJRM-1), Official Journal RS 70/2006, SOP

6 The Penal Code 9 defines punishment in the case of abuse of prostitution. It declares that persons who are in any way involved in the process of another person s becoming a prostitute against their will or by fraud will be punished by three months to five years imprisonment (Article 185). If the person being forced into prostitution is a minor, the punishment is higher (Article 185). 10 In the section concerning crimes against civilians, a decree states that anyone who violates international legislation in a time of war by cooperating in forced prostitution will be punished by ten to thirty years imprisonment (Article 374). Public debates and, consequently, media reports on prostitution, when it was decriminalised in 2003, approached the topic of prostitution in a bipolar manner: on the one hand, prostitution was reduced to an economic activity and treated as a money-earning business; on the other hand, it was magnified as a controversial behaviour and a threat to public morality. Women involved in prostitution were consequently presented either as professionals, mobile phone business women who know exactly what they want, or, in contrast, as women coming from abroad, described as naïve girls from problematic countries of south-eastern Europe. The media was full of opinions stated by delegates, supporters and opponents of decriminalisation, and of comments that more or less rehearsed the bipolarity of parliamentary debate. In the rare examples of media reporting that included prostitutes opinions, these were used only to support one of these two arguments. Apart from being present in a few media reports, public debates did not include female or male prostitutes, whose standpoints were as a result neglected (Pajnik 2003, Hrženjak 2005) Unemployment policies The Social Security Act determines that foreigners with permanent residence in Slovenia have the same right to claim the provisions of this law as do Slovene citizens. The Act states that if certain international agreements regulate the matter foreigners who do not have a permanent residence permit can also claim rights to individual services and (temporary) financial social assistance (Articles 5 and 34). However, financial social assistance can be refused to a person who has not attained a minimum income for reasons within they control, or who avoids and abandons activities that lead to employment (Article 24). Besides favouring Slovene citizens and foreigners with permanent residence, this act in general has another deficiency, namely, that it does not mention women in particular (it only speaks in general terms of citizens, foreigners, and unemployed persons ). By not considering situations particular to women, such as pregnancy, it does not account for the fact that in such situations, women might find themselves unemployed or without income. The possibilities for unemployed parents to improve the financial conditions of their families are regulated by the Parental Protection and Family Benefits Act, 11 which in general relates benefits linked to employment status. It designates the right to a financial supplement for parents with permanent residence in Slovenia (if they had insurance). Forms of financial aid include assistance at child birth, which is a lump-sum payment intended for the purchase of equipment for the newborn or equipment worth the same amount of money (Articles 63 and 64). According to the same act, the so-called child bonus is accessible to foreigners with permanent residence the amount depends mostly on the income of the children s parents (Articles 65-67). Among the forms of financial assistance that can be accessed by migrant parents with permanent residence is the bonus for a large family, which is intended for a family with three or more children and is a yearly lump-sum payment (Articles 76 and 77). The bonus for nursing a child (Articles 80 and 81) applies when the child has permanent residence status in Slovenia. Both the partial payment for lost income (Articles 84 and 85) and the parental bonus (Article 59) are tied to Slovene citizenship and are inaccessible to many migrants whose living conditions need urgent improvement. The problem of the bonus for children and other social benefits is that they depend on the legal status of the 9 Kazenski zakonik (KZ-UPB1), Official Journal RS 95/2004, SOP The Article 186 that dealt with pandering has recently been abolished. 11 Zakon o starševskem varstvu in družinskih prejemkih (ZSDP-UPB1), Official Journal RS 110/2003, SOP

7 beneficiaries. For example, a child whose mother has no legal status in Slovenia does not have the right to the bonus even though Slovenia is a signatory to the Convention on the Rights of the Child, which obliges the states parties to the Convention to treat all children on their territory equally, regardless of their legal status. Pension and insurance provisions are also closely related to social protection: obligatory insurance applies to Slovene citizens and foreigners who are employees of international organizations and institutions, foreign diplomatic representative bodies, or consular missions, as defined by the Pension and Disability Insurance Act 12 (Articles 7 and 13). Unemployed persons who receive unemployment benefits and persons receiving pension and disability insurance payments from the Employment Service of Slovenia as stipulated by the right to pension, are obliged to enter the obligatory insurance program (Article 22). Unemployed citizens who are registered with the Employment Service of Slovenia, and foreigners who meet certain criteria (when regulated by international agreements), such as being on unpaid leave, being in the process of suspension of the employment contract, being a primary care-giver for children under seven years or of disabled persons, or being employed part-time, can enter the so-called voluntary inclusion into obligatory insurance (Article 34). Furthermore, unemployed persons can access their old-age pension before reaching retirement age. Unemployment is a condition for accessing the old-age pension when the insurant has been registered at the Employment Service of Slovenia for a period of at least 12 months within the last 24 months (Article 55). If the insurant was registered at the Employment Service of Slovenia as unemployed or seeking employment, the age-limit 13 decreases by as many months as the length of the insurance period (Article 70). Legislative provisions include records of unemployed and disabled workers, such that unemployed insurants must take into consideration that the periods of unemployment when they received suitable compensation because of their disability are not considered as employment or insurance years that count towards the right to pension (Article 71). Among the provisions, it can be observed that insurants who were not included in obligatory insurance can also obtain the right to partial disability pension or to a suitable financial substitute. To meet the criteria, they would have to register at the Employment Service of Slovenia thirty days after the decision on recognised right to disability insurance or after the labour relation or insurance ends (Article 97). Healthcare connected with employment is regulated by the Health Care and Health Insurance Act, 14 which determines the basis for unemployed persons who receive financial subsidy or financial assistance from the Employment Service of Slovenia as insurants. Health insurance is also accessible to anyone with permanent residence in Slovenia (Article 15). Foreigners who are studying or specializing in Slovenia and who do not have any other insurance have access to insurance as determined by this Act. The Act also allows for insurance for workplace injury or occupational hazard for unemployed persons who are engaged in the public works program (Article 17). Slovenia has ratified the European Social Charter; 15 the Ratification of European Social Charter (amended) Act 16 supports its provisions, among them perhaps the most important with reference to women migrant workers is the article on the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of gender (Article 20 of the European Social Charter). However, the supplement to the amended European Charter explains that 12 Zakon o pokojninskem in invalidskem zavarovanju (ZPIZ-1), Official Journal RS 20/2004, SOP Age limits as defined by the Pension and Disability Insurance Act are as follows: age 58 when completing 40 years of employment for men and 38 years for women; age 63 for men or age 61 for women if they have completed 20 years of employment; age 65 for men or age 63 for women if they have at least 15 years of employment (Article 36). 14 Zakon o zdravstvenem varstvu in zdravstvenem zavarovanju (ZZVZZ-UPB2), Official Journal RS 100/2005, SOP European Treaty Series, 1996, no Zakon o ratifikaciji Evropske socialne listine (spremenjene), Official Journal RS 24/1999, SOP

8 matters relating to social assistance, such as compensation for the period of unemployment, old-age pension, and family pension do not fall under the range of application of this article. Moreover, these provisions include foreigners only in so far as they are nationals of other parties, lawfully resident or working regularly within the territory of the party concerned. An exception is made for refugees: each party will grant to refugees as defined in the Convention relating to the status of refugees, signed in Geneva on 28 July 1951 and in the Protocol of 31 January 1967, and lawfully staying in its territory, treatment as favourable as possible, and in any case not less favourable than under the obligations accepted by the party under the said convention and under any other existing international instruments applicable to those refugees (Appendix to the revised European Social Charter). On the one hand, the laws mentioned above support and enforce instruments that provide social security for citizens of Slovenia as well as (to some extent) for migrants. On the other hand, they introduce a difference between wanted and unwanted migrants. According to these acts and laws, most social rights are connected to citizenship status, and to the status of person with permanent residence. The latter is difficult to obtain: for example, the Aliens Act, 17 which sets rules of eligibility for permanent residence, favours migrants who have spent many years living in Slovenia (Article 41). The main problem in obtaining permanent residence is providing evidence of a permanent means of financial support. In effect, providing evidence means that an individual or her spouse (same sex couples are excluded here) must have a permanent job (people with the status of independent cultural workers are also excluded here); as a result, it is nearly impossible for single and unemployed persons to get permanent residence Social policies for re-entering the labour market Most legislative provisions in the field of labour apply to persons seeking employment for the first time, persons seeking employment after a short period of unemployment, and persons seeking employment after a long period of unemployment. Only a few provisions exist that refer directly to those re-entering the labour market. The Social Security Act considers employment to be closely related to the field of social affairs in general, and contains a provision on supporting re-entry into the labour market: it provides a financial incentive to employ persons eligible for financial assistance. In other words, employers who employ persons who were i) unemployed for a longer period and who had ii) been receiving financial assistance for at least 24 months, are entitled to government subventions (Article 36.a). The main legislation referring to re-entering the labour market is the Employment and Insurance against Unemployment Act, 18 which regulates the suitability of jobs for the unemployed, depending on how the work is classified in the tariff system (Articles 17.č and 17.d). According to this regulation, a person is eventually required to accept a job even if she is overqualified or if her educational level exceeds the requirements of the position. The measures of the Active Employment Policy program relevant to the employment of migrants with permanent residence in Slovenia are aimed at increasing the employment rate. The measures of the Policy engage organisations or employers who are involved with employment programs, to mediate and assure that unemployed persons get jobs. These jobs are usually co-financed by the state (Employment and Insurance against Unemployment Act, Article 48). The implementation of the measures of the Policy is specified in the Rules on Implementation of Active Employment Policy Measures, 19 which outlines in greater detail the purposes and duration of the program, as well as the key groups of participants, the procedure for inclusion of participants, control over expenditure, and the procedure for refund of means. Among the key groups, migrants (or specific groups of migrants such as migrant women, asylum seekers, refugees, etc.) have not yet been identified as groups in need 17 Zakon o tujcih, Official Journal RS 108/2002, SOP Zakon o zaposlovanju in zavarovanju za primer brezposelnosti (ZZZPB), Official Journal RS 5/1991, 17/1991, 12/1992, 71/1993, 2/1994, 38/1994, 80/1997, 69/1998, 67/2002, SOP Pravilnik o izvajanju ukrepov aktivne politike zaposlovanja, Official Journal RS 64/2001, 31/2003, 135/2003, 80/2004, 61/2005, 76/2005, 98/2005, 2/2006, SOP

9 of assistance to enter the labour market. According to current discussions at the Ministry of Labour, Family and Social Affairs, one of these groups (most likely refugees with asylum status) will be included in the Active Employment Policies. 20 It should also be pointed out that no specific measures exist in Slovenia to support self-employment of migrants. When establishing whether a person is suitable for inclusion in this program, the following criteria are considered: conditions on the labour market in specific areas of work and conditions in the specific occupation; costs of inclusion in the program; personal, professional and other abilities of the unemployed person and her age; chances of successful conclusion of the program; requests of the unemployed person with regards to the type of program in which they wish to be included and whether these requests are reasonable with regards to the chances of employment in a certain environment and period; opportunities for gaining a certificate of education or qualification; and family obligations, including responsibilities such as being primary care-giver to young children or children with disabilities, or living with an unemployed person. Younger persons, persons who have been unemployed for a longer period, disabled persons who have received financial compensation or assistance, and unemployed persons who are not qualified to work in open positions have priority for inclusion in this program (Active Employment Policy, Article 49.b). These criteria tend to leave out older persons, who in general are at a disadvantage in finding new jobs. The Policy also introduces public work programs within local or national employment programs, intended to encourage the development of new jobs and to preserve or develop the working abilities of unemployed persons. Employers are forbidden to organise such services if their main purpose is profit or the creation of unfair competition in the market. These programs can be organised by the state or by individual municipalities (Article 52). Means for carrying out such public works programs are provided by the Employment Service of Slovenia and the company or municipality that organises them (Article 53.a). The status of unemployed persons who are included in public works is regulated by provisions on labour relations that define working hours, breaks and rests, night work, minimum yearly leave, safety and health at work, and special protection of workers. The program includes educational and qualifying programs (Article 53): unemployed persons can enter these programs as regulated by the employment plan; those whose education is co-financed by employers have priority for inclusion in education programs (Article 53.a). The only provision of the Employment and Insurance in Case of Unemployment Act that refers directly to women is the regulation on financial compensation in case of unemployment while pregnant or on maternity leave (Article 79). Migrants can be insured according to this law if they have a permanent residence permit and a personal work permit for an indefinite period (Article 26). They can register as unemployed under similar terms: they are required to have a personal work permit (Article 69). According to the Employment and Labour of Foreigners Act, 21 foreigners can obtain the permit only if they have permanent or temporary residence in Slovenia (Article 10) Policies combating illicit work Policies combating illicit work were introduced by the Prevention of Illegal Work and Employment Act, 22 which prohibits illicit work and defines it as the work activities of an individual who is not registered to perform such activities (Article 3). Illicit work entails illegal employment, defined as a situation in which: i) an employer did not conclude an employment contract with an employee in accordance with the law and did not register her for health, pension and disability insurance; ii) an employer employs a foreigner or a stateless person contrary to the Employment and Work of Aliens Act; and iii) an individual employs an employee for illegal work (Article 5). The bodies controlling illicit work are inspectorates. If they establish a case of illicit work, they are entitled to issue a decision 20 Information provided by our key informant from the Ministry of Labour, Family and Social Affairs. 21 Zakon o zaposlovanju in delu tujcev (ZZDT-UPB1), Official Journal RS 66/00, 101/05, SOP Zakon o preprečevanju dela in zaposlovanja na črno, Official Journal RS 36/2000, SOP

10 and prohibit such work. An appeal against such a decision can be filed within eight days of the day when the decision was served (Article 13). For the purposes of establishing, coordinating, and monitoring activities aimed at the prevention of illicit work and employment, the Government established a Commission for the Disclosure and Prevention of Illegal Work and Employment (Article 14). The Commission coordinates the activities of the inspectorates and compiles yearly reports that are submitted to the Economic and Social Council and to the Government. In 2003, the Ministry of Labour, Family and Social Affairs recorded 2,742 instances of illicit work; 23 there are no genderspecific statistics available. Currently (August 2006), the amendments to the Prevention of Illegal Work and Employment Act are in preparation, introducing additional measures to combat illicit work. If a person is found to be engaged in illicit work and is at the same time officially unemployed, it will be legally presumed that this person is in a permanent employment relationship. In addition, the employment contract will introduce possibilities such as short-term employment in family businesses and minor work for up to 20 hours per week. The new rules are to discourage employers from engaging people in illicit work. 24 These provisions lack clarity; at the moment it is not clear how they will affect migrants who are not allowed to work, nor can they have the status of being unemployed. In public debate, illicit work is not a common issue unless it is discussed in connection with illegal migration (for more, see Pajnik et al. 2001, Jalušič 2002). For instance, the 2006 amendments to the Asylum Act were adopted with the rationale that the restrictions in the asylum procedure are needed because the current law was too benevolent, allowing asylum seekers to abuse asylum procedure for the purpose of residing in Slovenia and working illegally. In other words, stricter legislation is seen by the authorities as a tool to combat illegal work and abuse of procedures, despite public warnings expressed by NGOs and concerned citizens that the introduced restrictions would lower the standards of respect for asylum seekers rights. 2. Policies targeting migrants Migration and naturalization policies, policies regulating residence and work, policies on illegal immigration Residence The basic framework of migration and naturalization policies was established by the Constitution of the Republic of Slovenia, 25 stipulating that foreigners in Slovenia enjoy all the rights guaranteed by the Constitution and laws, except for those rights that only citizens of Slovenia enjoy (Article 13). Further, the Constitution stipulates that [e]ntry into the country by aliens, and the duration of their stay in the country, may be limited on the basis of law (Article 32). The Constitution also provides for special rights of the aliens employed in Slovenia and members of their families, which are further defined by the law (Article 79). There are several laws regulating the status of foreigners in Slovenia. The main law is the Aliens Act, 26 which categorizes three different statuses for foreigners: i) temporary residence, ii) permanent residence (Article 26), and iii) permission to remain (Article 52). 57,725 foreigners held valid permits for residence at the end of The number of permanent residence permits was 26,165, and the number of temporary residence permits 31,560. Temporary residence in Slovenia can be obtained for the following reasons: schooling/studying, work or employment and/or family re-unification with a 23 See ( ) (Date of download). 24 Proposal of the amendments to the Prevention of Illegal Work and Employment Act, at 04.nsf/277bdf36cd5b7373c1256efa00399a6b/a6e50c8b6299e8dcc12571b70021eab5/$FILE/Zakondelona%C4% 8Drno.doc 25 Ustava Republike Slovenije, Official Journal RS 33I/1991-I, 42/1997, 66/2000, 24/2003, 69/2004, 69/2004, 69/2004, SOP Zakon o tujcih, Official Journal RS 108/2002, SOP

11 Slovene citizen. The amendments 27 to the Aliens Act, adopted in 2006, foresee two additional reasons for obtaining a temporary residence: voluntary work and research. The temporary residence permission can be issued for a maximum of one year and can be extended (Article 31). In order to obtain a temporary residence permit, a foreigner must fulfil additional conditions, such as sufficient financial resources, health insurance, confirmation of enrolment, work permit, etc. (Articles 32-38). A foreigner can apply for a permanent residence permit after five years of residing in Slovenia on the basis of temporary residence permits, if she still fulfils other conditions needed for temporary residence (Article 41). The main problem encountered by migrant women is that obtaining permanent residence requires providing evidence of a permanent job. If a foreigner fails to fulfil the conditions to obtain or retain a temporary residence permit, but cannot be returned to her country of origin, she can apply for permission to remain in Slovenia owing to non-refoulement (Article 52). It should be noted that before the five-year residence requirement for obtaining permanent residence, this requirement was eight years. According to the Citizenship Act of the Republic of Slovenia, 28 foreigners have the right to obtain Slovene citizenship via naturalization after ten years of residing legally in the country. Since the introduction of the Act in June 1991 up to September ,200 persons gained Slovene citizenship. Those applying have to fulfil additional conditions, such as suitable housing, financial resources, health insurance, etc. In practice, the fact that migrants have to provide evidence of permanent employment manifests itself as the main obstacle preventing them from obtaining citizenship. In addition, two main problems in the implementation of this act are the extremely long administrative procedures and the discretionary right of officials not to grant citizenship to a person despite her fulfilment of all the conditions. Migrants who enter Slovenia illegally can apply for asylum. The right to asylum is provided by the Constitution of the Republic of Slovenia which stipulates that within the limits of the law, the right of asylum shall be recognised for foreign nationals and stateless persons who are subject to persecution for their commitment to human rights and fundamental freedoms (Article 48). The right to asylum is further defined with the Asylum Act. 29 A foreign national or a stateless person can acquire asylum from persecution on the grounds of race, nationality, political opinion, religion, or membership of a particular social group, if she cannot avail herself of the protection of her country of origin (Article 1). If a person fails to fulfil the conditions for asylum, but cannot be returned to her country of origin, she can be granted subsidiary protection (Article 1). Persons who are granted refugee status are to obtain permanent residency in Slovenia (Article 49). Female migrants have the right to request a female officer to conduct their asylum procedure, as well as a female interpreter (Article 12). However, owing to the lack of interpreters for certain languages, the state is not always able to provide the stipulated interpreters upon the demand of an asylum seeker. In terms of statistics, the number of asylum applications increased from 6 in 1995 to 9,244 in 2000, and it decreased considerably in 2002, when 640 people applied for asylum. In ,101 people applied for asylum, and 1,674 in Among these only 26 were granted a refugee status in 2005 and 661 applications were denied. Other applications met abolishment of procedure. Upon lodging an asylum application, asylum seekers obtain the right to reside in Slovenia and to move freely across its territory. In practice, however, many asylum seekers are detained in the Detention Centre in Veliki Otok near Postojna (particularly those who have been captured on the territory of Slovenia with no legal status) and remain there even though they apply for asylum. If they are not detained and are captured in any other part of Slovenia except the capital Ljubljana, they are considered to be abusing the asylum procedure, which is grounds for detention. Those who are accommodated in Asylum Home in Ljubljana have, in principle, the right to free movement; however, in practice they are not allowed to leave or enter Asylum Home before 6 a.m. and after 10 p.m. (11 27 Zakon o spremembah in dopolnitvah Zakona o tujcih, Official Journal RS 79/2006, SOP Zakon o državljanstvu Republike Slovenije, Official Journal RS 7/2003, SOP Zakon o azilu, Official Journal RS 61/1999, 124/2000, 67/2001, 98/2003, 17/2006, SOP

12 p.m. in the summer) or to spend the night elsewhere without special permission, and they are counted every morning at Their right to free movement is therefore de facto limited. With the recent adoption of the latest set of Asylum Act amendments (February 2006), process provisions deteriorated, and the set of rights was diminished. One of the main changes in the law grants the police the authority to consider the reasons for which a potential asylum applicant is applying for asylum. If a police officer establishes that the applicant s reasons do not correspond to the reasons for which asylum has been granted, a potential asylum seeker is not allowed to apply for asylum at all (even though the only body competent to consider asylum applications in Slovenia is the Ministry of Interior). This means that with the most recent amendments, the police obtained the de facto authority to decide on the validity of the reasons for which an asylum seeker is applying for asylum. A representative of the Ministry of the Interior justifies these measures by giving examples of migrants who supposedly claim asylum even though they are not in danger of persecution. The public official claims that all policemen dealing with migrants at border crossings are specifically educated and trained to perform such a job. They know the Schengen system and are trained to perform an interview with a potential asylum seeker and to establish whether or not any given person is a true asylum seeker. In practice, according to NGO reports, 30 a police officer who is doubtful about the asylum seeker s reasons for applying for asylum would phone an official at the Ministry of the Interior and obtain their opinion on the migrant s reasons for application. If the Ministry official finds the reasons to be unfounded, the asylum seeker is not allowed to apply for asylum. The stated provision entered into force in March 2006 and has only been implemented for a short time because it is being repealed by the Constitutional Court for being discretionary and unconstitutional. The Constitutional Court suspended the application of this provision until the final decisions on this case is issued. It is necessary to emphasise that the Council Directive 2005/85/EC on minimum standards on procedures in member states for granting and withdrawing refugee status provides for much less authority to the body of the member state than Slovenia has granted to its police in preliminary asylum procedure. In this respect the stated directive was not correctly transposed. The attempts to increase repression in the asylum procedure and to limit illegal immigration could be observed even before the latest Asylum Act amendments were introduced. For example, in March 2004 the authorities introduced a measure according to which people who expressed the intention to apply for asylum (but were not yet formally asylum seekers) had to sign a statement saying that if they were to leave the pre-reception area of the Asylum Home their intention of applying for asylum would be considered withdrawn. What this meant in practice was that people were waiting in a confined area until their asylum applications were processed, which could take several days or even up to one week. 31 The statements were offered and signatures required without any legal basis, meaning that migrants freedom of movement was de-facto limited. In addition, if a person left the premises for any reason (which often happened, owing to misunderstanding of the statement) their asylum application was considered withdrawn. It further meant that if they lodged repeated applications, it was considered as an abuse of the asylum procedure. In other cases when migrants applied for asylum after they wad been taken to the Detention Centre in Veliki otok near Postojna (premises primarily intended for detention of undocumented migrants but where several asylum seekers are also detained), NGOs acting in the field reported that migrants experienced difficulties while trying to access the asylum procedure, e.g. when police officers did not want to hear their request to lodge an asylum application or when Asylum Sector officials would come to the Detention Centre only two or three weeks after they had been notified about persons intending to apply for asylum. In both cases their application would be deemed unjustifiably late and therefore manifestly unfounded, and the asylum seekers would 30 Such incidents are reported by several NGOs; one of the projects specifically concerned with procedures at the border is carried out by Legal Information Centre for NGOs LIC in cooperation with UNHCR. 31 Based on NGO reports the waiting period was particularly long before May 2005 because the officials were only taking asylum applications on weekday mornings. After that, the officials also started working on call and began taking applications twice a day, including weekends and holidays, which shortened the waiting time to one day. 12

13 be rejected on the grounds of abusing the asylum procedure. In general, the regulation of asylum procedure for obtaining the status of asylum as well as its implementation in practice became extremely restricted. The current situation is likely to send more and more people underground, forcing them to change the country of their actual residence and take up illicit work to survive. 32 Temporary protection provisions regulate situations of mass influx of persons from another country due to armed conflict, occupation, or gross human rights violation, and are used when the asylum system cannot support a large number of applications. This situation is regulated by the 2005 Temporary Protection of Displaced Persons Act, 33 which replaced a 1997 Temporary Protection Act. 34 The reason for mentioning the earlier act lies in the fact that the 1999 act regulated the status of thousands of Bosnian and Croat refugees fleeing war in the former Yugoslavia. In 2003, the Temporary Protection Act was amended and the remaining 3,000 refugees, who could not return to their country of origin, obtained the right to apply for permanent residence in Slovenia. The 2003 amendments to the 1999 Act provided specific rights, namely, the right to reside in refugee centres and the right to social assistance. However, it is necessary to stress that Bosnian refugees 35 live in difficult conditions, since these rights are only slowly being applied in practice. It is especially difficult for the elderly, disabled, and those who cannot work or have difficulty finding work. The 2005 Temporary Protection of Displaced Persons Act was subject to criticism by NGOs who claimed that the set of rights for persons comprehended by this act is defined as inadequate. The Act, for example, only takes into consideration the economic situation in the country of origin. A person who is granted refugee status and wants to gain all the necessary documents must first find a place to stay. This often represents a big problem for refugees. They must look for a place to stay without documents. Because they are foreigners, landlords usually react to them with distrust or try to take advantage of them. Even if a refugee is successful in finding a place to live, the landlords usually do not include the whole rental amount in the lease in order to avoid paying more taxes. This represents a further problem for refugees when they attempt to claim financial aid from the Ministry of the Interior, aid to which they are entitled, but they can only get the amount that is written in the lease. In the early 1990s, a large number of people, 18,300 (out of two million) living in Slovenia were erased from the registry of permanent residents. Their situation requires special consideration since it reflects the attitude of Slovene authorities toward migrants in general, and toward people coming from former Yugoslav republics in particular. Many had been living in Slovenia for decades, or were even born in Slovenia. In , these people s names were deleted from the registry of permanent residents and added to the registry of people with no legal status. This erasure was a sanction for not having applied for Slovene citizenship in due time, an arbitrary measure that was not foreseen by law. The erasure was declared unconstitutional by the Constitutional Court in 1999 and However, in terms of restoration of justice, nothing has been done so far to implement the Constitutional Court decision and re-establish permanent residence status for people who have not succeeded in regulating their status on their own (approximately 4,000) (for more, see Dedić et al. 2003). One of the few legislative attempts to restore the rights of the erased was the adoption of the 1999 Act Regulating the Legal Status of Citizens of Former Yugoslavia living in the Republic of Slovenia, 36 which in principle provided the erased with the opportunity to re-apply for permanent residency. Because this act was poorly implemented, the pace of issuing decisions was slow. Its main deficiency, however, was conceptual, in that it required the erased to re-apply for a status that they had already held previously permanent residency and which had been arbitrarily taken away from them and the fact that they had to fulfil the conditions of constant and uninterrupted presence in Slovenia since the erasure. The issue of the erased received much public attention, as a result of efforts on the part of the erased, activists, and NGOs who protested against the measures and called upon the government to address the issue, restore permanent residence and offer compensation for lost apartments, pensions, 32 This information was provided by the Legal Information Centre for Non-Governmental Organizations LIC. 33 Zakon o začasni zaščiti razseljenih oseb, Official Journal RS 65/2005, SOP Zakon o začasnem zatočišču, Official Journal RS 20/1997, 67/2002, 65/2005, SOP Currently (September 2006) 134 Bosnian refugees live in Slovenia, of which 62 are female (55 percent), and 22 are minors. 36 Zakon o urejanju statusa državljanov drugih držav naslednic nekdanje SFRJ v Republiki Sloveniji; Official Journal RS 61/1999, SOP

14 health insurance etc. Thanks to the joint efforts of the erased, their legal representatives, and concerned people in general, the erasure has received international attention, but so far the state has not reversed these injustices Work The main act regulating work and employment in Slovenia is the Employment Relations Act, 37 which contains a provision that a fixed term employment contract can be entered with a foreigner who has a fixed-term work permit. The main problem is that employers take advantage of this provision by understanding fixed-term employment contracts as normal. Consequently, migrants with low paid jobs are entirely dependent on the will of their employers and have restricted disability and health care rights. For instance, if a foreigner with a fixed-term contract gets permanently ill or disabled, her contract is simply not extended. In addition, due to a lack of supervision, employers often exceed the maximum term for which fixed term contracts can be signed between the same parties (which is 3 years). After that period, the employer and worker must enter a permanent employment contract. Employment and work of migrants is further regulated by the Employment and Work of Aliens Act. 38 It requires migrants to obtain a work permit before entering Slovenia for the purposes of work or employment (Article 4). The number of work permits issued by the Employment Office is limited yearly (in quotas) by a decision of the Government (Article 5). According to the Decree laying down work permit quota for 2006 to limit the number of aliens on labour market, 39 the yearly quota amounting up to 17,350 working permits was determined. This decision takes into account the profiles of workers that are lacking in Slovenia (i.e. deficit vocations), and it is adopted after consultation with trade unions, other ministries and the Economic and Social Council. Work permits are issued by the Ministry of Labour, specifically by the Sector of Labour Migration at the Directorate for Labour Market and Employment. This governmental body is responsible for creating economic migration policies in cooperation with the Ministry of the Interior. Altogether 42,967 working permits were valid at the end of 2005; among these 25,782 were personal working permits, the number of permits for employment was 12,360, and the number of work permits 4,825. Data show that foreigners who have finished primary school education prevail (22,152 on December 31, 2005), followed by those who have finished vocational schooling (11,487). The majority of foreigners work in construction business, almost 60 percent in manufacturing, and 14 percent in catering industry. 40 According to the Asylum Act, asylum seekers have a limited right to work in Slovenia. An asylum seeker obtains the right to work one year after the date on which she lodged the application for asylum (Article 46.a), if her identity is confirmed and if she is not responsible for the fact that the asylum procedure has not yet been completed. In order to work, the applicants must apply for the work permit at the Employment Office, enclosing confirmation that no decision on asylum application has been issued to her by the Asylum Sector in one year. The work permit for the asylum seeker may be issued for up to three months and can be extended. When they receive the work permit, the asylum seekers are legally equal to Slovene and EU nationals in access to the labour market. Currently (September 2006), there are two asylum seekers in Slovenia who have gained work permits. The rules on gaining a work permit, which were adopted pursuant to the transposition of the Council Directive 2003/9/EC, are stricter than the previously existing rule on the right to work: the right to work was not systemically regulated by the Employment Relations Act, but in practice asylum seekers who found work were issued a certificate by the Ministry of the Interior, confirming that they were 37 Zakon o delovnih razmerjih, Official Journal RS 42/2002, SOP Zakon o zaposlovanju in delu tujcev, Official Journal RS 66/2000, 101/2005, SOP Uredba o določitvi kvote delovnih dovoljenj za leto 2006, s katero se omejuje število tujcev na trgu dela, Official Journal RS 30/2006/, SOP Poročilo delovne skupine za pripravo možnih ukrepov za uveljavitev migracijske politike Republike Slovenije predlog za obravnavo, Ministry of the Interior, November 23,