MIGRANT WORKERS’ ACCESS TO JUSTICE SERIES Migrant Workers’ Access to Justice at Home: Nepal Sarah Paoletti l Eleanor Taylor-Nicholson l Bandita Sijapati l Bassina Farbenblum Migrant Workers’ Access to Justice at Home: Nepal Migrant Workers’ Access to Justice at Home: Nepal Sarah Paoletti University of Pennsylvania Eleanor Taylor-Nicholson University of New South Wales Bandita Sijapati Centre for the Study of Labour and Mobility Bassina Farbenblum University of New South Wales Copyright © 2014 by Bassina Farbenblum, Eleanor Taylor-Nicholson, Sarah H. Paoletti, and Centre for the Study of Labour and Mobility, Social Science Baha. This publication is licensed under a Creative Commons Attribution-NonCommercial- NoDerivs 3.0 license. You may copy and distribute the document, only in its entirety, as long as it is attributed to the authors and used for noncommercial, educational, or public policy purposes. Photographs may not be used separately from the publication. ISBN: 978-1-940983-11-0 Published by Open Society Foundations 224 West 57th Street New York, NY 10019, USA www.soros.org For more information contact: This publication is available as a pdf on the websites of the Open Society Foundations (www.opensocietyfoundations.org), the Migrant Worker Access to Justice Project (www.migrantworkerjustice.org), and the Centre for the Study of Labour and Mobility (www.ceslam.org). For more about the Open Society International Migration Initiative, contact Elizabeth Frantz at: [email protected] For more about the Migrant Worker Access to Justice Project, contact Sarah Paoletti at: [email protected] Cover photo: Om Kumar Chaudhary, aged 23, fixes a goods lift on a construction site in Kathmandu, Nepal on 16 December 2013. He moved to Kathmandu to learn construction work in preparation for a job in Qatar. He currently earns $180 dollars a month but expects to earn more than double that amount in Qatar. Photo credit: © Narendra Shrestha/EPA. Text layout by Createch Ltd. Table of Contents Acronyms and Terminology 9 List of Figures and Tables 13 Acknowledgments 15 Executive Summary 17 1. Introduction 23 1.1 Overview 23 1.2 Labor Migration from Nepal to the Middle East 25 1.3 Origin Countries and Access to Justice for Migrant Workers 26 1.4 Objectives and Structure of this Study 27 2. Theoretical Framework 29 2.1 A Rights-Based Approach 29 2.2 Defining and Assessing Access to Justice 32 5 3. Research Methods 35 3.1 Assessment Locations 35 3.2 Methods 36 3.3 Limitations 38 4. Who Are Nepali Migrant Workers to the Middle East? 41 4.1 Demographics of Nepali Labor Migrants to the Middle East 42 4.2 Female Migrant Workers 44 4.3 Irregular Migration 45 5. Migration Actors and the Migration Process in Nepal 51 5.1 Key Actors in Nepal’s Foreign Employment Sector 51 5.2 The Migration Process Under the Foreign Employment Act 2007 56 5.3 The Migration Process for Most Migrant Workers 59 5.4 Summary 62 6. Abuses and Labor Violations Experienced by Nepali Migrant Workers 63 6.1 Harms Experienced Pre-Departure 64 6.2 Harms Occurring in Transit 68 6.3 Harms Occurring in the Destination Country 69 7. Laws Relevant to Foreign Employment 77 7.1 Nepal’s Legal System 77 7.2 The Foreign Employment Act 2007 and Rules 2008 79 7.3 Human Trafficking and Transportation (Control) Act 2007 81 7.4 Civil Code of Nepal (Muluki Ain) 82 7.5 Gaps and Limitations in the Domestic Legal Framework 82 7.6 The Role of International Law 85 8. Mechanisms for Enforcing Rights 91 8.1 Department of Foreign Employment Complaints Registration and Investigation Section 92 6 TABLE OF CONTENTS 8.2 Foreign Employment Tribunal 110 8.3 The Court System 117 8.4 Compensation in the Case of Death or Disability 119 8.5 Embassy Assistance for Nepalis Abroad 126 8.6 Direct Negotiation and Informal Methods of Seeking Justice 133 8.7 Summary of Pathways and Mechanisms to Access Justice 142 9. Obstacles to Accessing Justice 145 9.1 Lack of Awareness of Rights and Redress Mechanisms 145 9.2 Centralization of Redress Mechanisms in Kathmandu 148 9.3 Lack of Documentation to Support Claims 149 9.4 The Pervasive Unregulated System of Individual Agents 150 9.5 Threats or Fear of Retaliation 151 9.6 Insufficient Resources and Training for Government Agencies Assisting Migrant Workers 152 9.7 Corruption or Perceptions of Corruption in Foreign Employment 153 9.8 Socio-Political, Economic and Gender-related Obstacles to Accessing Justice 155 10. Conclusion, Findings, and Recommendations 157 10.1 Conclusion 157 10.2 Findings 158 10.3 Recommendations 170 Annexes 181 Annex 1: Sampling Of Interviewees And Focus Group Participants 181 Annex 2: Key Informant Interviews 185 Annex 3: Relevant International Conventions And Protocols Ratified by Nepal 187 Notes 189 MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: NEPAL 7 Acronyms and Terminology Abbreviation English Translation or Acronym BS Bikram Sambat, the Nepali Calendar CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CESLAM Centre for the Study of Labour and Mobility CMW Convention on the Protection of the Rights of All Migrant Workers and their Family Members CRC Convention on the Rights of the Child CTEVT Council for Technical Education and Vocational Training DA District Attorney DAO District Administration Office DoFE Department of Foreign Employment DoLEP Department of Labor and Employment Promotion FEPB Foreign Employment Promotion Board GAMCA Gulf Cooperation Council Approved Medical Centers Association 9 Abbreviation English Translation or Acronym GCC Gulf Cooperation Council (including Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates) GEFONT General Federation of Nepalese Trade Unions HTTCA Human Trafficking and Transportation Control Act ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ILO International Labour Organization IOM International Organization for Migration MoFA Ministry of Foreign Affairs MoLE Ministry of Labor and Employment MoLTM Ministry of Labor and Transport Management MoU Memorandum of Understanding MRC Migrant Resource Center NGO Nongovernmental Organization NLSS Nepal Living Standards Survey PAF Poverty Alleviation Fund PNCC Pravasi Nepal Coordination Committee PNSS Pravasi Nepali Sewa Samiti SAARC South Asian Association for Regional Cooperation SGA Special Government Attorney UAE United Arab Emirates VDC Village Development Committee WOREC Women’s Rehabilitation Center In this report, the term “recruitment agency” has been used to describe private companies licensed to place workers in overseas positions, although it is understood that in Nepal the terms “manpower agency,” “foreign employment business,” and “for- eign employment entrepreneur” are more commonly used. 10 ACRONYMS AND TERMINOLOGY Similarly, individual actors that connect migrant workers with recruitment agen- cies are referred to in this report as “individual agents.” Other terms commonly used in Nepal and abroad include “agent,” “sub-agent,” “broker,” “middleman” or “intermediary.” Dates in Nepal are based on the Bikram Sambat (BS), Nepali calendar which is approximately 56 years and eight months ahead of the Gregorian calendar. The year of publication, 2014, is fiscal year 2070/71 BS. In this report, the BS year is given in the first reference to a law and then the Gregorian year is used thereafter. The BS new year starts in mid-April, so years do not align with Gregorian years. Where a BS year is referred to as a time period, both relevant Gregorian years are included—for example, data from the year 2070 BS is written as 2013/2014. MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: NEPAL 11 List of Figures and Tables Figures Figure 1: Labor Permits Issued in Nepal 2008/09–2012/13 42 Figure 2: Numbers of Persons Absent per District in 2011 43 Figure 3: Procedure for Foreign Labour Recruitment by Recruitment Agency, as Set forth Under FEA 2007 57 Figure 4: Problems Faced Abroad by 43 Migrant Worker Study Participants 70 Figure 5: Total Number of Deaths of Nepali Workers Abroad Reported to the FEPB 71 Figure 6: Summary of DoFE Complaints Investigation and Handling Procedures 99 Figure 7: Problems During Migration and Attendance at Pre-Departure Orientation 147 Tables Table 1: Migration to the GCC Countries and Middle East 25 Table 2: Categories of Persons Interviewed in Nepal 37 Table 3: Pre-approvals and Final Labor Permits Issued by DoFE 59 Table 4: Nepali Migrant Worker Deaths by Country and Cause 2012/13 72 13 Table 5: Bilateral Agreement and MOUs between Nepal and Middle East countries regarding labor migration 88 Table 6: Offenses for which DoFE Is Authorized to Make Determinations and Orders 97 Table 7: Details of Complaints Registered at DoFE and Tribunal 100 Table 8: Criminal Offenses to Be Prosecuted at the Foreign Employment Tribunal 111 Table 9: Welfare Fund by Nature of Claim and Number of Recipients 2013/2014 125 Table 10: Focus Groups by Location, Date and Participant Gender 182 Table 11: In-depth Interviews by Location, Date 182 Table 12: Destination Country for Returned Migrant Worker Participants in the Study 183 14 LIST OF FIGURES AND TABLES Acknowledgments This research was supported by the International Migration Initiative of the Open Soci- ety Foundations, the University of New South Wales Law School, and the University of Pennsylvania Law School. The authors are grateful to the entire research team at the Centre for the Study of Labour and Mobility (CESLAM), Social Science Baha, Kathmandu. In particular, we would like to thank Amrita Limbu for her indefatigable support throughout the research and writ- ing process. Other members of the CESLAM team who have contributed significantly to the report include Himalaya Kharel, Nabin Rawal, Sanjay Sharma, Prashanta Pradhan, Sampreety Gurung, and Rooja Bajracharya.