End-of-mission statement of the UN Special Rapporteur on the human rights of migrants on his visit to Nepal

Kathmandu, 5 February 2018

Following an invitation by the Government, I conducted a visit to Nepal from 29 January to 5 February 2018. During my 8-day visit, I met representatives of the Government, the United Nations Country Team, the National Human Rights Commission, the diplomatic community, migrants and their families, civil society organizations, trade unions, recruitment agencies, domestic workers’ training centers associations, pre-departure orientation centers associations, medical centers associations and skill training providers. I visited various places in Kathmandu, including the labour village, and travelled to Kailali and Morang district.

This is the first country visit carried out by a UN Special Procedure mandate holder in over nine years and I commend the Government for its willingness to cooperate with Special Procedure mandate holders. I would like to express my appreciation for the support and cooperation provided by the Government in the preparation and development of the visit. I am also grateful to the United Nations Country Team in Nepal for their valuable support and assistance, both before and during my mission.

With more than 1,500 Nepali migrant workers officially leaving Nepal every day, international labour migration forms an important part of the lives of Nepali citizens. Most Nepali migrant workers may see themselves compelled to migrate because of extremely difficult economic circumstances, loss of land or employment, debt, the loss of a spouse, family illness, due to a less favourable socio-economic status for women, minorities, low-caste or landless people and to guarantee a better future for their children.

Most Nepali migrant workers leave to Malaysia, the Gulf countries and India. Over the years, a large recruitment industry has developed in Nepal. Approximately three and a half million labour permits have been issued in the last nine fiscal years by the Nepali Government and remittances have become an important source of economic development and poverty reduction in the country.

Nepal has made progress in ensuring protection of the rights of its citizens who migrate for foreign employment. It adopted the 2007 Foreign Employment Act further developed by the 2008 Foreign Employment Regulation, the 2012 Foreign Employment Policy and the 2015 “Free Visa, Free Ticket” policy, among other measures. I also recognise an increased awareness on the part of the State on the need to address these issues in a comprehensive manner, including through coordination amongst different Ministries.  However, important protection gaps continue to exist in law, and challenges remain in enforcement, implementation and monitoring.

Recruitment challenges

During my mission I observed a very complex recruitment system, in which a large number of actors are operating. The government of Nepal has licensed approximatively 1000 private recruitment agencies, which are operating at the central level. While I recognise that recruiters facilitate regular opportunities, whereby migrants arrive in countries with a legitimate visa, I observed that the sector is in practice very poorly regulated, allowing recruiters to often charge high recruitment fees. For instance, I heard accounts of recruitment fees reaching NPR 180,000 (approximatively USD 1,750).

In the absence of sufficient licensed agencies at the local level, unlicensed subagents get involved in assisting migrants in job placement and the relevant process, including obtaining visas, necessary administrative approvals, medical clearance and insurance. I heard accounts of potential migrant workers dealing with seven different official and informal agents in their entire recruitment process, leading to repeated payment of high fees for unclear purposes. I therefore urge the Government to develop legislation that regulates the relationship between recruitment agencies and their agents, their subagents or other forms of subcontractors, in order to establish clear responsibilities and liability in the recruitment chain. Further, I invite the Government to facilitate recruitment agencies opening additional branch agencies at the district level, so as to increase accessibility of potential migrant workers to licensed recruitment agencies.

I commend the government of Nepal for a model in which ticket and visa costs are born by the employer and which limits the legally permitted recruitment fee to NPR 10,000 (equivalent to USD 96) for placement in the seven major destination countries. However, the policy is poorly enforced and no effective monitoring mechanism to address non-compliance is in place. In addition, I wish to draw attention to the fact that the policy does not completely eliminate recruitment fees and still allows for some fees to be charged to potential migrant workers for pre-departure services. Legislation to limit the fees improperly legitimize the concept of charging migrants for their recruitment and create unnecessary confusion. Recruitment fees are a business-to-business charge and should be banned completely.

I was informed that often potential Nepali migrant workers cannot pay the costs related to their recruitment. If bank loans are refused, they may have to sell their land, pawn their jewellery, borrow from friends or relatives, or turn to informal money lenders who charge them high interest rates, sometimes raising up to 35%. I also was informed of situations where agents deducted debts directly from migrant workers’ salaries, which ultimately left them with little to no savings when returning back to Nepal. Recruitment fees and the commonly resulting debt increase the precariousness of the migrant’s situation and may lead to situations of debt bondage, forced labour and trafficking. I urge authorities as a matter of priority to more effectively monitor recruitment agencies and enforce penalties against those recruitment agencies that violate provisions in prevailing legislation, so as to ensure better protection of Nepali migrant workers from situations of debt bondage and forced labour.

The Government has made efforts in enhancing potential migrants’ access to information, when introducing a mandatory two-day pre-departure orientation training. However, these trainings are only available in Kathmandu and in a few selected districts, which involves further costs for travel and stay in Kathmandu. Overall, I observed that vocational skills, adequate orientation for the employment, and awareness on the migration process need to be improved, in order to ensure that migration decisions are well-informed, and that migrants know their rights and how to seek help or lodge a complaint.

In terms of monitoring, it is highly problematic that the Department that registers and licenses private institutions is tasked with monitoring these institutions. This may partly explain the impunity in which recruiters continue to operate. I encourage the Nepali authorities to establish an independent monitoring mechanism with the necessary resources to effectively identify abuse and exploitation, including through systems based on complaints from unions, the National Human Rights Commission and civil society organizations. This mechanism also needs to ensure better monitoring of labour recruitment chains at district level. At the same time, I encourage the Ministry of Labour and Employment to ensure that recruiters are effectively licensed and to develop a reliable rating system of recruiters that assesses their business practices in relation to human rights and labour standards. Abuse and exploitation by recruiters needs to be investigated and their license withdrawn in case of violation of pertaining legislation. Recruitment agencies should further be monitored in terms of handing out receipts for all payments made by migrants. At the same time, I encourage the Government to ensure sufficient budget is allocated to the Ministry of Labour and Employment and the Department of Foreign Employment, to ensure they can effectively carry out their mandates according to the Foreign Employment Act.

Irregular migration

India remains a major destination country for Nepali workers. Since they are not required any official document to enter and work in India, there is only limited data available on how many migrant workers cross the border to India. In the absence of a treaty, referring to the protection of the rights, needs and interests of migrants and according to accounts I heard, migrants have very little to no means to seek redress for violations suffered in India. I encourage the Nepali authorities to ensure better protection for its citizens, including by collecting data on the types of violations and abuse incurred at the local level, developing relevant policy, and opening consulates or Embassies in those cities of India where a significant number of Nepali migrants resides.

Despite legislation that prohibits the departure of migrant workers via another country, I collected testimonies which state that large number of migrant workers, particularly women, depart via India in order to evade the Nepali government’s regulations, as well as the lengthy and expensive recruitment process. In the process, they may become victims of unscrupulous agents and recruitment agencies and may find themselves in situations where they are forced to leave on forged or fake documents or without the necessary papers, which can leave them stranded and in an irregular situation in the destination country. Because of their irregular status, Nepali authorities provide only limited support to them and they are excluded from benefits received through the Foreign Employment Welfare Fund and returns and reintegration programs. 

The government of Nepal must protect and assist irregular Nepali migrant workers in destination countries and facilitate their return to Nepal, regardless of their migratory status. The focus should be on monitoring recruitment agencies and punishment should be directed against them rather than the migrant for his or her irregular status. I also urge the Nepali authorities to ensure better protection of female domestic workers abroad and to include such provisions in any bilateral agreement or Memorandums of Understanding concluded with a destination State.

I was told that the Foreign Employment Welfare Fund is been used on a regular basis to facilitate injured or sick migrant workers return to Nepal, or to compensate families in case of death. I regret to hear however, that irregular migrants and their families are not entitled to the same benefits, which constitutes a discrimination against them.

Women migrant workers

I could also witness a lot of stigma around migration of women, loosely associated with prostitution or trafficking for sex work. I am aware that Nepali women migrant workers are often employed in private households, operating outside the formal economy, excluded from labour law protection and often left in an extremely precarious situation, heavily dependent upon their employer and without any formal protection mechanism. However, the solution to these problems cannot be to discriminate them through the imposition of bans or other means in their right to leave their country. Nepali women migrant workers need better protection from Government authorities. Specific age limits applied to women who wish to migrate, restrictions applied to women with children under two years of age, and the ban applied on women wishing to migrate as domestic workers to the Gulf Cooperation Countries, discriminate women in their right to leave their country. Such provisions only drive migration further underground and a considerable number of Nepali women use irregular channels through India, often at hands of unscrupulous recruiters. I heard multiple accounts where women did not end up carrying out the jobs they agreed to, were brought to countries different than the ones promised, and sometimes ended up in trafficking rings in third countries.  

I hence strongly urge Nepali authorities to develop a human rights based, holistic and comprehensive policy, aiming at better protection of women migrant workers in destination countries. This policy should be developed through close consultation with all stakeholders, including all relevant Ministries, civil society organisations, the National Human Rights Commission and women migrant workers themselves. Assistance from International Non-Governmental Organisations and United Nations agencies would be relevant in this regard.   

Consular Assistance

Besides the issues described so far, various interlocutors told me about violations of the Foreign Employment Act, which rendered migrant workers more vulnerable to exploitation and abuse, once they arrived in the destination country. For instance, that the terms of employment, the remuneration, the employing company or the type of work agreed upon in Nepal were changed upon arrival in the destination country; that contracts were substituted; that the contract was not translated into a language migrant workers understood and they were not given a copy of the contract;  that migrant workers, including migrant children, were sent on forged or fake documents; that they faced regular non-payment of wages or deduction in wages. I also heard testimonies that they did not receive information on how to complain if the contract was not respected, that they lived in overcrowded or substandard conditions and were forced to remain with the employers despite abuse.

I welcome the appointment of labour attachés in Nepali missions abroad. However, I have received complaints that the Nepali authorities were often not willing to assist or able to protect Nepali migrant workers in the destination States, and most often they received assistance to repatriate from civil society organisations. I wish to highlight that such tasks should be carried out by the State. Therefore, Nepal needs to strengthen its welfare services and consular assistance provided to Nepali migrants in destination States, particularly in countries with high numbers of Nepali workers. Regardless of the migratory status of the victims, Embassies should have women officers to deal with cases of sexual abuse, provide a local 24/7 hotline free of charge, establish a roster of competent local lawyers, ensure access to justice in destination countries, and facilitate repatriation. I thus note the need to enhance cooperation with destination States to ensure that the rights of Nepali are respected during the whole migration process. The government of Nepal in cooperation of the destination country, must ensure that Nepali migrants’ rights in destination countries meet international standards with respect to facilities at work, access to justice, freedom of mobility, health, sanitation and association. I encourage the authorities and especially labour attachés and consular services to collect better data in terms of the complaints received, so that proper policy measures can be taken by the Nepali authorities.

Access to justice

According to international standards, everyone has the right to an effective remedy from the competent national tribunals for acts violating their fundamental rights. However, according to the accounts I heard, many migrants face serious barriers to accessing remedies when they are exploited and abused during or as a result of their recruitment process.

The centralised location of the institutions dealing with violations of provisions in the Foreign Employment Act, such as the Department of Foreign Employment and the Foreign Employment Tribunal, discourage a lot of victims to lodge a complaint, as they lack the funds for travel and accommodation in Kathmandu.

While I welcome the creation of the Foreign Employment Tribunal to ensure access to justice for migrant workers, I am disappointed to see that most disputes are settled through informal dispute resolutions at the Department of Foreign Employment. Despite the gravity of the cases presented to me, they were rarely referred to the Judiciary. I strongly urge the Government of Nepal to strengthen the capacity of the Foreign Employment Tribunal and to determine by law the type of cases in which migrants have to be referred to the formal judicial system, to protect the right of migrant workers to seek redress. Strengthening the role of the Judiciary helps to build respect for the overall Rule of Law in relation to labour recruitment.

During my mission, I learnt that most complaints from victims involving trafficking for labour exploitation or concerning forced labour were referred to the Ministry of Labour and Employment, as they would fall under provisions of the Foreign Employment Act. Despite existing legislation concerning human trafficking and forced labour, only victims’ complaints related to human trafficking of women and girls for the purpose of sexual exploitation were investigated and tried under the criminal justice system. I urge the Government of Nepal to ensure that all cases involving trafficking and forced labour are properly investigated and tried under the criminal justice system. In order to enhance the understanding of these crimes, capacity-building, including at the local level and with district judges and police, need to be enhanced.   

Maximise the benefits of labour migration

Nepal’s reliance on remittances for poverty reduction and economic development renders it extremely vulnerable to remittance flows. Unscrupulous recruiters take significant resources away from migrants, through the charging of recruitment fees and broader economic exploitation, thus effectively disempowering the poorest. This has also a negative impact on the economy of the country as a whole.

Returned migrants often face the same social and economic challenges upon return, which pushed them to migrate in the first place and ultimately leads to re-migration. Women find it particularly challenging, as they face additional social stigma because of their migration. Investing in sustainable returns, including by supporting business initiatives and banking on the experiences of Nepali who migrated, should be a key priority of the Government. Labour migration has the potential to support sustainable development through upskilling of workers who are able to make additional contributions upon their return. I urge the Nepali authorities to create domestic job opportunities, including for returned migrants. Despite provisions in the existing legislation and policy framework, I am not aware of any orientation programmes for returnees implemented by the Welfare Fund. I strongly encourage the authorities to develop migration policies which meet the needs of returnees, facilitate their reintegration in the labour market and recognise their experience and skills acquired abroad. At the same time, it is essential that the government seeks ways of reducing dependence on labour migration by focusing on alternative employment opportunities, skills recognition, human resource skills training, and manufacturing, among others.

Considering the lack of information and the high costs which migrant workers incur in their recruitment process or upon return, I encourage decentralisation of the foreign labour management. The decentralisation of institutional mechanisms of foreign employment would render many services and rights more accessible to all migrants. For instance, this would enhance access to information, to legal remedies and ensure a more direct contact to recruitment agencies, passport offices and skills and pre-departure trainings. Decentralisation of recruitment agencies could give migrants direct access to the process, eliminating chances of being cheated by subagents. This process of decentralisation would be especially relevant in a context where many migrants come from places other than Kathmandu.

Bilateral agreements / Regional process

The government has utilised bilateral instruments in the form of labour agreements and Memorandums of Understanding to protect its citizens in destination countries. In this respect, I urge Nepali authorities to pursue the conclusion of legally binding bilateral agreements and memorandums of understanding. In order to properly enforce the “Free Visa, Free Ticket” policy, the government must revise the bilateral agreements with the seven countries where the policy applies. Any labour agreement should include a uniform model contract for all workers, including domestic workers, which should ensure respect for and protection of their human rights. Labour contracts based on such a model should specify the job description, wages and labour conditions.

I encourage Nepal, including in its current role as the Chair of the Colombo Process, to continue to engage in international and regional fora such as the Colombo Process, the Abu Dhabi Process or SAARC. International and regional cooperation is necessary to transition to an ethical system. Regional cooperation with other Asian migrant sending countries would allow to develop a common agenda, which should include minimum standards for labour migrants and labour conditions, a collective ban on recruitment fees, the adoption of a standard contract and social protection and insurance provisions, so as to ensure that concerns about international competitiveness do not impact the transition to an ethical recruitment system.

While my visit mainly focused on labour migration from Nepal, I also looked into migration to Nepal. According to international standards and with the exception of the right to vote and be elected and the right to enter and stay, migrants, regardless of their status, benefit from the entire human rights framework. I remind the Nepali government of its obligations concerning the non-refoulement principle, according to which an individual assessment before any expulsion procedure is required. Regarding the use of immigration detention, I wish to remind the authorities that international standards state that immigration detention is permissible only when it is reasonable, necessary and proportionate; is decided on a case-by-case basis; and is used for the shortest possible time. Migrant children should never be detained.

Preliminary recommendations

Strengthening the legal and policy framework

• Ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW)
• Ratify ILO conventions No. 87 concerning Freedom of Association and Protection of the Right to Organise Convention, No. 97 concerning Migration for Employment (1949), No. 143 concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (1975), No. 181 concerning Private Employment Agencies (1997), and No. 189 concerning Decent Work for Domestic Workers (2011)
• Ratify the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children
• Ensure implementation of the 2011 United Nations Guiding Principles on Business and Human Rights, by taking concrete steps to implement the United Nations Respect, Protect and Remedy Framework in relation to migrant workers
• Embrace migration as a force for development, ensuring the human rights of migrants are respected, while taking a holistic approach that  the perspective of migrant workers, private sector organisations, civil society and international organisations, at national, regional and international level, to ensure the development of a range of legal and policy interventions;
• Transition to an ethical recruitment system, by
• Effectively banning the payment of all types of recruitment fees by migrants; ensuring that the initiative for the implementation of this ban is on the government and not on the migrants; ensuring a wide dissemination of this information, allowing migrant workers to make informed decisions and avoid being misled by unscrupulous recruiters and their sub-agents
• Standardizing contracts for migrant workers within different sectors and at different skills levels. Labour contracts based on such a standardized model should specify the job description, wages and labour conditions
• Developing legislation that regulates the relationship between recruitment agencies and their agents, their subagents or other forms of subcontractors, such as testing centres. Recruiters should have formal business arrangements in place with all agents and subagents that articulate a clear structure of accountability and liability for business practices
• Empowering migrants through information and support;
• Invest in sufficient social protection systems to ensure that poverty does not force Nepali nationals into precarious labour migration;

Effective regulation, oversight and enforcement of the law

• Develop country-level and regional policies on tackling exploitative and abusive recruitment practices, which bring together the perspectives of the multiple stakeholders involved in the recruitment process, articulate a clear vision for eliminating abuse and exploitation, and precisely define the roles and responsibilities within the complex network of actors who contribute to international recruitment
• Invest in the effective evaluation of policies relating to recruitment fees and migrant workers to ensure robust and evidence-led policymaking at the national, regional and international levels, including through external independent auditing mechanisms
• Include strong gender analysis within all laws and policies to ensure protection for the additional vulnerability of many women migrant workers. Such protection should, however, never limit the economic opportunities or freedom of movement of women, nor be the basis for discrimination;
• Develop fully robust, transparent and publically accountable licensing systems for recruitment companies. Recruitment companies seeking licences must be subject to rigorous human rights and labour law due diligence. Companies licensed to provide recruitment services to migrants should be subject to ongoing regulation and monitoring in relation to human rights impact
• Require recruitment agencies who facilitate the employment of migrants abroad to be licensed in order to ensure more effective bilateral oversight of recruitment practices
• Strengthen the monitoring system of recruitment agencies, allocating an adequate amount of resources for such purpose, conducting, among other initiatives, more frequent visits of inspection to such agencies
• Revoke the licences of recruitment agencies that charge fees to migrants and/or have abused their human or labour rights. Licences should be subject to regular renewal with compliance with human rights obligations being essential for reissuing of licences
• Ensure controls are in place to prevent the re-registration of unscrupulous agencies following having had their licence revoked. Develop a rating scheme, which assesses the conduct of recruitment agencies against human rights and labour standards, so that migrants are empowered to avoid unscrupulous agents and there is a market incentive for agencies to comply with human rights and labour rights
• As part of this rating scheme, strengthen the initiative to blacklist unethical agencies, which exploit and/or facilitate broader human rights and labour law abuses and enhance awareness about the blacklisted agencies facilitated by the government 
• Ensure that actions following the detection of unethical recruitment practices never economically or criminally penalize migrants

Regional and international cooperation

• Develop bilateral agreements on labour migration between countries of destination and origin, which are based on international standards and prioritize the full implementation of the human rights and labour rights of migrants and fully incorporate the voices of both migrants and civil society
• Continue dialogue through the regional consultative processes, ensuring that it is guided by the long-term, holistic thinking that is needed to achieve the whole-scale transition to an ethical recruitment system

Access to justice

• Remove barriers to access to justice, ensuring that migrants can effectively access a legal remedy for violations of their rights in the context of recruitment practices and labour migration
• Access to justice should primarily be through judicial and quasi-judicial means and should not be reliant only on voluntary or private forms of remedy, which often do not provide adequate compensation to migrants or effectively punish rights violators
• Strengthen the capacity of the independent judiciary to provide access to justice for migrant workers who have been exploited by recruiters and punish perpetrators in such a way that creates real and lasting disincentives for the mistreatment of migrants
• Make easily available all the services necessary for ensuring effective access to justice for all migrant workers, such as legal aid, interpretation and translation services, information about rights and available remedies, as well as humanitarian visas to return to destination countries to testify and otherwise pursue justice. Bilateral agreements between countries of origin and destination should address the provision of such services

Empowering migrants through information and support

• Increase and improve pre-departure training and information in order to promote informed decision-making and enhance the skill levels of prospective migrants, including language and general skills
• Invest in the development and dissemination of information on access to justice for migrant workers, so that they are aware of their rights and potential avenues for support and remedy if they are subject to exploitation by recruitment companies
• Ensure that consular support is always available to migrants in countries of destination, so that they are able to access information and assistance about finding alternatives to exploitative situations, and gaining access to justice and social protection services
• Increase the capacity of labour attachés within missions in countries of destination, in order to allow them to increase the scope of their work and give more attention to combatting the practices of unscrupulous recruiters

Countries of destination

• Extend labour protection in national law to domestic workers, including by formulating provisions related to minimum wages, payment for overtime, working hours, working conditions, days of rest, annual leave, freedom of association and social security protection, including with respect to maternity, pension rights and health insurance, as well as effective recourse and remedies. Ensure that migrant domestic workers have a written contract, in a language they can understand, stating their specific duties, working hours, remuneration, days of rest, and other conditions of work. Model contracts should be adopted for this purpose. Persons who abuse domestic workers should be prevented from hiring more domestic workers in the future. Labour inspections should be undertaken also in employers’ households, and regular meetings should take place between domestic workers and a labour inspector outside the household, in order to combat abuse. Ensure that migrant domestic workers have access to complaint mechanisms and legal assistance.

Recommendations to private sector organisations

• Lead by example in the development and implementation of the human rights due diligence undertaken in relation to government contracts. Prioritize and reward ethical recruitment agencies within the contracting of government work and ensure that the costs of ethical recruitment are factored into the tendering process. Have a zero-tolerance policy on the charging of fees and broader abuses of migrant workers’ rights in any part of government supply chains. Ensure regular and robust independent audits to ensure compliance