Nepalese undertaking foreign employment has increased many folds since past couple of decades. It is estimated that half of Nepali households have at least one family member working abroad or returnee of foreign employment. Remittance, mostly by the Nepali foreign labor migrants, is the backbone to Nepal’s economy, contributing approximately 25 percent to its GDP. As per the data from World Bank, remittance inflow to Nepal touched 28% of its GDP in 2018, highest in South Asian countries, with next closest country being Sri Lanka at 8.10% in the region.
Between 2008 and 2019, the Nepal’s Department of Foreign Employment (DOFE) issued around 4 million labour approvals to the Nepali citizens for work in Gulf Cooperation Council (GCC) and Malaysia, bringing up to USD 8.79 Billion per year into the country through remittance. Most of the approvals, 499102, came in the year 2014-15, which dipped to 236208 in 2018-19. During the year 2020-21, only 72,081 work permits were issued by DOFE. Between 2019-20 the government suspended issuance of labour permits (till July 2020).
As per DOFE, in 2017-2018 the major destination countries for Nepali migrant labors, for all genders, were Malaysia (29.4%), Qatar (29.1%), UAE (17.0%), Saudi Arabia (16.6%), Kuwait (5.0%) Bahrain (1.4%), Poland 1.0%), Oman (0.9%), Turkey (0.5%), Jorden (0.5%) and others (3.6%).
In the year 2018-2019 their destination countries include, Qatar (31.8%), UAE (26.5%0, Saudi Arabia (19.5%), Kuwait (6.8%), Malaysia (4.2%), Bahrain (2.0%), Oman (1.2%), Maldives (0.8%), Afghanistan (0.8%), Cyprus (0.7%) and others (5.7%).
As for as female labor migrants are concerned, during the year 2018-19, their major destinations have been UAE (35.6%), Qatar (18.0%), Saudi Arabia (7.7%), Kuwait (7.7%), Cyprus (7.5%), Jorden (6.7%), Malta (3.2%), Maldives (2.4%), Turkey (2.1%), Bahrain (2.1%) and others (7.0%).
The Government of Nepal has set up guidelines, a nine-step process, for employment related recruitment process of the Nepali workers to other countries, which involve following steps;
- The employer in the destination country applies for and receives the required approval from the government of that particular country to hire foreign workers.
- The employer or its authorized representative submits the labor demand letter and related documents to the diplomatic mission of Nepal for verification.
The documents to be deposited by the employer to the Embassy of Nepal include an application form, Standard Demand letter clearly indicating number and gender of workers; their basic salary; working hours; provisions of food, accommodation and transportation; medical insurance; compensation for injuries and death; in and outbound air travel and other service benefits and costs.
The employers are also bound to submit Service Agreements between Nepali manpower agencies and recruiting companies in destination countries; besides Power of Attorney issued by the company on recruiting company to Nepali Manpower Company, with their license number.
The recruiting companies have to submit two copies of the Standard Employment Contract based on job position and basic salary, to ensure that the intended workers can get equal salaries and benefits. The companies are also required to submit a Guarantee Letter to make sure that the intending workers are assigned specified work as in the contract and to ensure their safety and security.
Other documents the recruiting companies need to submit with the Embassy of Nepal include Copy of EID of the Sponsor/Owner, Copy of Valid Trade/Commercial License of the Company and the Nepali Manpower Agency, Authentic Quota Paper from the concerned authority (if the company is private), Copy of ID of the Authorized Person (Owner/HR Manager/PRO) of the company or Authorization letter to submit and collect the documents, and ID no. and contact no. of Nepali workers working in the company, if any and their Salary Sheet of the last month.
- The Nepali Mission examines the employers legal and financial status, their employment records to verify the demand letter to hire Nepali workers and the terms and conditions of the demand offer. The officials of the Embassy of Nepal have the madidate, and responsibility, to check and visit and recruiting company and the accommodation of the employees before wetting the demand.
- The DOFE provides pre-approval for the recruitment of workers from Nepal after receiving validated documents.
- The recruitment agency publishes the vacancy announcement in the National Dailies. As per Article 14 of the Foreign Employment Rules (FER), 2064 of Nepal any advertisement in this regard need to have date of prior approval from DOEF, name and address of licensee and licensee number, post of worker and number of workers demanded, description of work, minimum qualification of the worker, provisions related to housing and food, monthly remuneration, daily and weekly work periods, place and deadline of application, insurance and medical facilities, provisions related to air travel, expenses to be paid, date and place for selection of the worker.
- The required process including interview, health examination, payment of insurance and welfare fund dues are completed. The process has to be on the basis of qualification, training and experience, age and physical fitness, as put in Article 16 of the FER. Besides reservations need for women, Dalit, indigenous nationalities, oppressedclass, backward areas and others, as per Article 16 (d) of FER.
- The Visa of the worker for the concerned destination country is received.
- The final labor approval is issued by DOFE.
- Departure of the destination country.
Given the number of reports of the rights violations of Nepali workers in different countries, which amounts to physical and mental torture and even deaths, the Government of Nepali has failed to stand and protect them. With the faulty system in place in the country, the government is adding and contributing to their miseries. Because these workers are suffering outside their homeland, the Government of Nepal cannot wash off its hands by ignoring its obligations under different domestic and international laws and protocols.
While Article 8 of the Universal Declaration on Human Rights (UDHR) provides for an effective remedy with determination by a competent tribunal for all violations of national laws. Art. 2(3)(a) contains the same provision but for violations of the rights contained in the ICCPR. Article 8 of UDHR says, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”.
The government of Nepal is in violation of Article 8 of UDHR as it is allowing unregistered brokers, deceit over actual contractual terms of employment; contract substitution at the airport prior to departure; delay in investigating complaints, etc. There are also allegations of corruption. Though there is a Foreign Employment Tribunal in place, butthe process for a complaint is lengthy and bureaucratic.
As pre-medical examinations of the person undertaking foreign employment is a must but fake/distorted/ fraudulent medical certificates are provided to them. After subsequent medical examinations in their country of employment, these workers are returned back to Nepal. Under Section 72 (2) OF FEA the medical centers that provide medical certificates to such person are supposed to pay the costs incurred by the person for undertaking foreign employment, which usually never happens.
The Government of Nepal has failed to provide remedy to the violations of the rights of such workers. It has also failed to check, investigate, and punish the perpetrators in such cases. The government has also, thus, failed to protect the ‘right to move’ of its workers as obligatory under Article 12 of ICCPR and Article 13 of ADHR.
While the rights of the Nepali’s workers are being violated by their foreign employers, having knowledge of it and allowing it, puts onus on the Government of Nepal too – violation of Article 12 of the ICCPR – as the state has a positive obligation to protect liberty of movement and protect the right for an individual to leave any country while that individual is subject to its jurisdiction, under Article 2 (1) of ICCPR.
The embassies of Nepal and its Labour Attachés lack a monitoring system to check on the worker’s rights violations in different countries, which again is a violation of obligations under ICCPR.
The Government of Nepal, as its policy, has banned women below 30 years from taking employment in GCC countries on the pretext of complains received regarding physical and sexual abuse, poor working conditions and their vulnerable to exploitations of different kinds. However, evidence shows that there are a number of young Nepali women working in different countries who took their employment through illegal channels, which makes them more vulnerable and keep them at higher risk of being exploited. The Government instead need to regulate, monitor and support employment of women in these countries. The ban imposed is against Article 2(e) CEDAW, Nepal is also party to.
‘Right to Work and to Just and Favorable Conditions of Work’ is guaranteed under Article 6 & 7 of the International Convention on Economic, Social and Cultural Rights (ICESCR); besides Articles 23 and 24 of the UDHR. Recent researches and studies on the death of migrant workers in GCC and other countries have highlighted dangerous work conditions and appalling living conditions these workers are exposed to. The workers are underpaid and made to work extra without compensation. Besides, exploitative and coercive work practices, abusive workplaces and preventing them leaving them, withholding passports, identity and travel documents; and framing them in legal cases is a clear violation of Article 6 (ICESCR). Though the Nepali migrant workers do face all these violations at their working places away from the country, the Government of Nepal is in violation of Article 6 & 7 of ICESCR if it does not intervene and make efforts to safeguard their citizens working abroad.
In Nepal, while there are official guidelines in place for other foreign state and private sector employers, with the responsibilities fixed for Nepal’s missions abroad and its government in the country, exploitation of its working away citizens is going on unabated. Domestic environment for exploitation of foreign labour migrants – in the form of forced labour, slavery and human trafficking – have been itself made conducive by the government of Nepal by giving impunity to the private sector in recruitment processes, which is in violation with Nepal’s Foreign Employment Act and Rules itself. Besides, the labour laws and record of the destination countries are not looked at or examined by the Government of Nepal before entering bilateral labour agreements with these particular countries.
There is no clarification on the mandates of Embassies of Nepal and its Labour Attachés, which adds to the woes of the Nepali migrant workers abroad; besides providing impunity to the employers involved in violating rights of Nepalese citizens employed by them. As per ILO, quoting media reports, Nepal witnesses over 900 deaths of its foreign labour workers every year. These deaths are usually passed as natural deaths. The families of the deceased have been questioning these deaths. Inaction on part of the Government of Nepal and its missions encourages exploitation of its citizens working in other countries.
Nepal has its own laws on foreign employment. The Foreign Employment Act, 2064 (2008) and rules clearly fixes responsibilities on the Government of Nepal. The law has clearly laid down the provisions related to selection of institutions and works, having treaty or agreement to the worker’s destination countries (including having and disseminating information on the relevant laws in those countries), license and its renewal of institutions providing foreign employment to Nepalese citizens, refund to the foreign employment seekers, prior approval and selection process of workers, guidelines for advertisement for the foreign jobs, grounds for selections of job seekers, registration points at immigration offices at time of departure and submission of relevant documents, orientation trainings for outgoing workers, fund deposition and its use, financial assistance to the families of outgoing workers in case of his/her death during foreign employment, etc. Unfortunately, as visible from the reports and researches, these laws and regulations are violated and disrespected.
Despite having a law in place, a number of cases have been reported where the government authorities are allegedly violating its own laws and responsibilities – for example, lack of clarity on responsibilities of Nepali missions abroad, visa facilitation centers charging multi folds more than then government fixed fees, lack of transparency of labor agreements between Nepal and other states, silence of the government – and lack of action on its part – on the reports of deaths and other rights violation of Nepalese workers in other countries, etc.
The Government of Nepal in 2015 had announced a scheme “Free Visa Free Ticket” for the outgoing Nepali migrant workers. However, the scheme turned out to be a big failure. Its failure was also acknowledged by the government in its house panel report. A sub-committee of the Parliamentary International Relations and Labour Committee also acknowledged that no migrant worker got benefited from this scheme. The report said that malpractices and cheating is dominating the sector and that the workers, going for employment in other countries, pay an amount between NPR 50,000 to NPR 9,00,000 to the recruitment agencies.
Despite the clear guidelines set up for the fee, the recruiting agencies are flaunting the regulations and there is no action from the government authorities. While the recruitment agencies are charging multi folds than the government capped fee, receipt of the actual amount charged are not provided to the job seekers. These recruitment agencies also accept the amount in cash only, which makes the process more suspicious.
As per the details available there are 1492 DOEF approved recruitment agencies in Nepal; 872 are active, 40 Inactive, 579 Blocked, and one has been suspended.
Nepal also has 143 orientation centers for its foreign labour workers; 128 active and 15 inactive. It also has MOFE approved 15 insurance companies, 18 banks, 222 Medical Centres and 14 registered RA branch offices.
The Government of Nepal has approved foreign employment of Nepalese for 110 countries through recruiting agencies. The government has temporarily blocked recruitment to two of these countries – Iraq and Libya. The DOEF has also blocked 63 foreign employers for conducting foreign employment in Nepal – 52 from Malaysia, 5 from Saudi Arabia, 3 from UAE and 3 from Qatar.
While rights of Nepali workers are being violated in other countries by their employers, there is a need to call on these countries to respect their rights and oblige with international obligations and protocols. However, it becomes more important to call on the Government of Nepal and its relevant authorities, besides Nepali missions abroad, to protect the rights of its own citizens.
The human rights violations and abuses, and exploitation, of Nepali workers abroad need to stop, but it has to begin from home. Given their contribution to keep the economy of Nepal afloat, it becomes more important for the Government of Nepal to implement and execute its own labour laws in letter and spirit, and respect its international obligation.
“The opposite of poverty is not wealth; the opposite of poverty is justice” – Bryan Stevenson
…… To Be Concluded.
