ASSESSMENT ON STATUS OF FOREIGN EMPLOYMENT VICTIMS IN FORMAL

COMPLAINT MECHANISMS

Published By

People Forum for Human Rights(People Forum)

Published By

People Forum for Human Rights(People Forum)

Free Legal Aid Centres of People Forum for Human Rights (People Forum)

Web Based Free Legal Advice for Migrant Workerswww.peopleforum.org.np

1. Free Legal Aid Centre Buddhanagar, Kathmandu Contact No: 016-923821

2. Free Legal Aid Centre Chandragadhi, Jhapa Contact No: 023-456598 3. Free Legal Aid Centre Biratnagar, Morang Contact No: 021-521469

4. Free Legal Aid Centre Bharatpur, Chitwan Contact No: 056-520879

5. Free Legal Aid Centre Pokhara, Kaski Contact No: 061-462559

6. Free Legal Aid Centre Banke, Nepalgunj Contact No: 081-520426

FACT SHEET

2016

ASSESSMENT ON STATUS OF FOREIGN EMPLOYMENT VICTIMS IN FORMAL

COMPLAINT MECHANISMS

FACT SHEET

2016

Published By

People Forum for Human Rights(People Forum)

Publisher:

People Forum for Human Rights (People Forum)Kalikasthan, Kathmandu, NepalContact: 01-4423973E-mail: forum2060@yahoo.com/info@peopleforum.org.npWebsite: www.peopleforum.org.np

Published Copy: 500

Copyright: People Forum

Printed at: Sopan Press P.v.t. Ltd Dillibazar, KathmanduPhone: 01-4442206Email: sopanpress2@gmail.com

PageBasic Facts on Nepal Labor Migration 1

Chapters

Assessment on Status of Foreign Employment Victims

in Formal Complaint Mechanisms 2

1. Background 2

2. Introduction 3

3. Findings of the Study 3

a. Ethnicity of the Victims 3

b. Gender of Vicitms 4

c. Age Groups of the Vicitims 5

d. Victims Density 5

e. Nature of Cases 6

f. Destination Wise Victims 7

g. Channels of Cheating 7

h. Trend of Complaints 8

i. Ratio of Compensation Provided by DoFE 9

j. Disposal of Cases by Foreign Employment Tribunal 10

k. Ratio of Compensation Provided through Free Legal Aid Centre of People Forum 10

l. Supreme Court Verdict on Foreign Employment Cases 11

m. Compensation Provided by FEPB in Death Cases 12

Conclusion 12

Annexes 13

Contents

Basic Facts on Nepal Labor Migration 1. Total number of migrant workers as of July, 2016 - 43, 78,6562. Number of migrant workers in the fiscal year 2072/73-4,18,7133. Number of Nepal Diplomatic Mission abroad – 29 (as of February

2017)4. Number of countries open for foreign employment – 110 (as of

February 2017)- Institutional-110 which include Banned-35. Number of MoU/BLA with destination countries - 6 (Qatar- BLA, Korea, Israel, Japan G2G and MoU with Baharain,

UAE)6. Number of Labor Attaché- 12 in 10 countries (as of February 2017) (Israel, Japan, Lebanon, Malaysia, Qatar, Saudi Arabia, Korea, UAE

and Kuwait)7. Number of safe home in destination countries- 4 (as of February 2017) (Qatar, UAE, Kuwait and Saudi Arabia)8. Number of Recruitment Agencies (RA)-754, Branch Offices of RA - 479. Remittance received in fiscal year 2072/73-NPR 589.5 billion

(Contribution in Nepal GDP 29.5%)10. Number of application registered in Counselor Department fiscal year

2072/73: 585 11. Number of migrant workers cases registered in NHRC fiscal year

2072/73: 1012. Number of Staff at FEPB: 17 (as of February 2017)13. Number of Staff at FET: 23 (as of February 2017)14. Number of Staff at DoFE: 38, Number of branch offices of DoFE- 3 (Kathmandu based Qatar, Malaysia and Saudi Arabia) (as of February

2017)15. Number of complaint in DoFE in the fiscal year 2072/73: 217216. Number of Pre-Departure Orientation Center- 117 (as of February

2017)17. Number of health centers listed for medical checkup- 281 (as of

February 2017)18. Number of insurance companies (FE insurance) - 6 (as of February 2017)19. Total Population of Nepal: 29,069,667 (as of February 2017)20. Total Area of Nepal: 1,47,181 KM21. Administrative Division : 7 Province and 75 Districts

1

Assessment on Status of Foreign Employment Victims in Formal

Complaint Mechanisms1. BackgroundEvery year thousands of Nepalese Youth travel as labor migrant which have directly contributed for earning foreign currencies. Currently, the remittance send by Nepalese migrant workers occupy a significant chunk of Nepal's Gross Domestic Product (GDP).Nepal has been one of the rising country of origin regarding sending migrant workers in the destination countries. Since the number of the workers1 in the foreign employment is increasing the problem interalias are too increasing. This in result, Nepali migrant workers are found facing a series of hardships including excessive working hours, non or under-payment of salary and wages, improper rest hours, labor exploitations, forced or compulsory labor, unfair legal allegations and penalties and other forms of human rights violations including physical or mental violence and even torture. Nepalese migrant workers are found denied of basic services by the employers.In this milieu, People Forum for Human Right (People Forum) a Non-Governmental Organization established for the protection of human rights and promotion of rule of law in Nepal. Since its establishment, it has been working for providing free legal aid to migrant workers, advocacy2 and lobby for policy reformation3 and generating awareness at the community level4 through training, workshop and interaction program. People Forum has been publishing Factsheet, Assessment on Status of Foreign Employment Victims in Formal Complaint

1 On average, a migration journey costs a migrant workers approxi-mately 150,000 Nepali rupees or $1,372 which was more than the an-nual house hold income of NPR 27,281 ($1,165) in the 2010-11 fiscal year source: Promoting informed policy dialogue remittance and devel-opment in Nepal/ Study conducted by International Labour Organization, 2016

2 Major result of advocacy programs include Scholarship program for chil-dren of deceased and disable Migrant workers , MoLE set up commit-tee for law amendment and constitutional provisions on labour migration.

3 People Forum has filed the PIL in Supreme Court of Nepal in 2008 regarding implementation of legal provisions relating to appointment of Labour Attaché, establishment of Safe Home for women migrant workers and establishment of Foreign Employment Tribunal.After Supreme Court order, Government of Nepal has appointed labor attaché in 10 of the different destination countries. Likewise, GoN has also established the shelter house in 4 of the destination countries name-ly (Kuwait, Qatar, Saudi Arabia and UAE).

4 It includes orientation and training to journalists, government officials, political leaders, migrant workers.

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Mechanism since 2015. It overviews about the status of Foreign Employment victims in Formal Complaint Mechanisms which include trends of complaints by fiscal year, case disposal ratio, age, gender and ethnicity of victims, types of problems faced by migrant workers and ratio of compensation provided by Department of Foreign Employment and Foreign Employment Tribunal (FET).

2. IntroductionThis study is based on cases filed by People Forum at Department of Foreign Employment (DoFE) on behalf of Foreign Employment vic-tims. Total 2172 complaints were registered in (DoFE) during fiscal year 2072-20735. Total sample size of the study is 1,005 which is 43% of the total complaints filed at DoFE6. The methodologies for the study mainly include study victims intake forms of People Forum’s Free Le-gal Aid Center. This study also includes analysis of some other data generated by the Department of Foreign Employment (DoFE)7 and For-eign Employment Tribunal (FET)8. Particularly, the scope of the study do not cover issues of migration in general, rather focuses on remedial aspects of the victims in formal complaint procedures.

3. Findings of the Studya. Ethnicity of the Victims

Table. 1

5 which was 0.55% of total labor migrant population of the same fiscal year6 Till now (as of April 2017) People Forumhas provided legal aid service to 13526

migrant workers and 34, 74, 70,338compensation to migrant workers with the support of SaMi/HELVETAS and Governance Facility, Nepal.

7 As per the provision of Foreign Employment Act, 2064 DoFE has mandate to inves-tigate and prosecute cases related to foreign employment. Similarly, the jurisdiction of DoFE has been extended with regard to the issue of compensation too.

8 FET has jurisdiction for adjudication of serious cases foreign employment which has punitive measure in the form of imprisonment.

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Here the above chart represents the ethnic composition of the victims in the redress process of the foreign employ-ment. The highest number of victims are from Brahmin/ Chhetri community followed by Janajati and Madeshi, Dal-it and others respectively. The very fact and composition ratio of victims can be substantiated with the overall num-bers if the migrant workers from among the different ethnic communities who go abroad as migrant workers.

b. Gender of Victims Table. 2

Since, the foreign employment is mostly understood as the migration of the male workers recently, female workers have also started going abroad. Mostly, male workers are engaged in outdoor and labor jobs while female are going abroad as domestic workers mostly in Middle East. Out of the total cases received in the fiscal year 2072/73, 88 percent of the cases be-longed to the male victims while rest were that of female. The ratio of female is comparatively low in compared to that of male. There are two reasons behind less percentage of female victims i.e. their stake in labor migration is low in comparison to that of male and since they work as domestic workers which is not effectively regulated and reported.

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c. Age Groups of the VictimsTable. 3

The above chart represents the percentage of different age group of victims. Where, 57 Percent of victims are from age group 26-40 years who have been victimized during the process of labor migration. This age group is followed by next age group of 18-25 years. Next, to this is 41-50 years. The age group 26-40 years are the most active age group in terms of their labor contribution. While they also have higher responsibilities either to their families or partners. Since, the highest number of migrant workers are from this 26-40 years age group it is obvious that the ratio of their victimization also accounts higher.

d. Victims Density In the fiscal year 2072/2073 total 2172 cases were registered

in Department of Foreign Employment (DoFE). Out of the total cases registered in DoFE in 1,005 cases People Forum provided free legal aid and paralegal service. Victims from 71 districts made claim through Free Legal Aid Centre at Buddhanagar. Out of 75 districts, People Forum did not receive any cases from the district from Humla, Jumla, Mugu and Mustang. It is a matter of further study that whether people aren’t victimized at all from those remote districts or victims are unable to complaint due to centralized justice mechanisms or other factors. The data and figure can be adjudged with the top labor sending districts. Since, these districts9send higher numbers of workers abroad the number of victimization also accounts accordingly.

9 Top Ten Districts with Victims Population: Sarlahi 95, Nawalparasi 57, Sindhupalchowk 39, Sunsari 39, Morang 38, Jhapa 33, Sindhuli 31, Ramechhap 31, Kathmandu 27, Kavrepalanchowk 27.

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e. Nature of CasesTable. 4

Migrant workers have been victimized in several types of cas-es. 45 % of the victims were being cheated by local brokers, RAs and agents within Nepal. Secondly, 25% of the victims have returned prior to the completion of the contracted period because of different job and salary than contract. Following with the next reason behind returning back or discontinuity of the job is the medical test failure. Migrant workers have to medically examine prior to departure and post departure where many of them are found medically unfit in the destina-tion country. Due to social status of victims, their skill, lack of proficiency in language and undocumented status make them more vulnerable for exploitation. Considering these factors, Foreign Employment Act 2064, provides compensation10 in case of breach of contract in destination countries. Other prob-lems include physical assault, left in transit, death, work place accident etc.

10 Section 55, of Foreign employment act 2007: If any licensee, after making a con-tract with any worker for work in a company, engages the worker in work for remuneration or facilities lower that or in another company for a work of such nature as is different than that specified in the contract or does not engage the worker in the work for which the worker has been sent for foreign employment but engages the worker in another work or engages the worker in work for remu-neration and facilities less than the remuneration and facilities offered previously, the Department shall punish such licensee with a fine of one hundred thousand rupees and require the licensee to pay the shortfall amount of such remuneration and facilities.

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f. Destination Wise Victims Table. 5

In the entire cycles of migration, the migrant workers may be victimized within the country of origin or in the destination countries. Malaysia, Qatar, Saudi Arabia, UAE, Kuwait are some of the major destination countries favored by Nepal-ese migrant workers. Out of the total victims cases received in People Forum the highest number of victims i.e. 56 % are from Malaysia alone followed by Qatar, Saudi Arabia, UAE, Kuwait and others respectively. All these destination countries usually do not have migrant workers friendly laws. Since Ma-laysia is one of the most favored destination countries among Nepalese migrant’s because of similar weather and climatic condition while demand is also high because of lack of ad-equate regulation and weak implementation of laws, victims number is highest than that of other destination countries.

g. Channels of Cheating

Table. 6

7

The above chart represents the ratio of the cheating channels. Out of total sampled cases, 65% cases were against recruitment agencies. Which have been increasing than that of the previous years. People Forum started to establish Free Legal Aid Centre five years before and during that time, individual cheating rate was 70% and institutional cheating was 30%. However, the present study shows it getting reversed. Causes of increase in institutional cheating could be due to awareness on legal procedure to the migrant workers and member of their families of foreign employment and as well as proper monitoring mechanism of government on recruitment agencies (RA).

h. Trend of Complaints: (Foreign Employment Cases filed in DoFE)

Table. 7

Table no 7. presents the number of cases registered in DoFE for four consecutive years. It has decreased in the year 2072/73 compare to that of previous fiscal years. While the scenario of individual complaint have been continuously decreasing from 2069-2073 the institutional complaint have been drastically increased. Meanwhile, hundreds and thousands of cases were filed every year in DoFE from the victims. Similarly, in the recent fiscal year the number of cases filed by the DoFE to FET has increased by almost 1/3 Percent. Likewise, the status of cases settled has also been remarkably increased. Despite this, it also indicates that DoFE has not been able to settle more than 75 percent of cases. Since, the Foreign Employment Act, 2064 specifically mandates DoFE for settling the complaints of foreign employment related to compensation. However, the trends and status of complaint filed in compared to the settlement of cases DoFE has not been able to address and effectively settle the cases.

Fiscal Year

Institu-tional Com-plaint

Indi-vidual Com-plaint

TotalCom-plaint

Status of Cases in DoFE

Case Regis-tered

in FET by

DoFE

Settled Pending

2072-2073 1468 704 2172 520 1652 230

2071-2072 1906 773 2679 663 1850 166

2070-2071 1577 974 2551 499 1919 133

2069-2070 1060 1245 2305 552 1575 178

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i. Ratio of Compensation provided by DoFE

Table. 8

As per the provision of Foreign Employment Act, 2064 DoFE has mandate to investigate and prosecute cases related to for-eign employment. Similarly, the jurisdiction of DoFE has been extended with regard to the issue of compensation too. Although Foreign Employment Act, 2064 has authorized DoFE to provide compensation, it has very low ratio (in av-erage 14%) of record of compensation provided to victims. It shows that the ratio of compensation provided by DoFE has been increasing in recent fiscal years. Legislation pro-vides DoFE with quasi–judicial authority aiming to provide fast, expert and accessible service to victims. Above table indicates that DoFE has not been successful to meet such expectation. However, further study is necessary for the in-depth analysis as DoFE does not have mandate to provide compensation to all complaints filed in DoFE. For serious cases with imprisonment and compensation, after doing necessary investigation DoFE needs to file charged Sheet in Foreign Employment Tribunal (FET).FET has mandate to provide compensation over on those cases.

Fiscal Year

Claimed Amount

Compensation Amount Total Com-pensation Provided

Compen-sation in Percent-

age

Individual Institutional %

2072-2073 Rs. 695096502 Rs. 48,03,956 5,56,38,525 Rs. 10,36,78,085 14.9

2071-2072 Rs.733,905,830 Rs.77,483,000 Rs.46,026,900 Rs.12,35,09,900 16.82

2070-2071 Rs.103,44,71,553 Rs.92359356 Rs.65383483 Rs.162242839 15.68

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j. Disposal of Cases by Foreign Employment Tribunal (FET)

Table. 9

To protect the rights and interests of the workers, Foreign Em-ployment Act, 2064 envisages to make Foreign Employment safe, decent and dignified. Once the cases were registered in DoFE, it requires to properly investigate and prosecute the se-rious nature of cases, mostly with imprisonment DoFE regis-tered charge sheet to FET. FET has jurisdiction for adjudica-tion of serious cases which has punitive measure in the form of imprisonment. Table 9 indicates that the total case disposal ratio of FET is 42.53% in the most recent fiscal year upon the cases filed by DoFE. This disposal ratio indicates that majority of cases were pending despite, FET required to apply Summary of Court Procedure. In fiscal year 2071/72 the tribunal has been successful to settle highest percentage of cases among last four years however, the number again have decreased in the fiscal year 72/73 while almost 2/3 percent of the cases remained unsettled. For all this, FET shall excel the ratio of the disposal of cases for providing prompt and speedy justice to the victims.

k. Ratio of Compensation Provided through Free Legal Aid Centre of People Forum

Table. 10Source: Free Legal Aid Service Center, People Forum, 2016

Fiscal Year Total Case Registered

Total Decided Cases

Percentage

2072/2073 436 (previous+ new) 185 42.43

2071/2072 419 ( previous + new) 213 50.83

2070/2071 395 (previous + new) 151 38.22

2069/2070 424 (previous + new) 163 38.44

Fiscal Year Total Victims

Claim Amount Total Compensation Amount through People Forum Legal Aid Center

Percentage (%)

2072/2073 1005 Rs.186005045 Rs10,3582148 55.68

2071/2072 1119 Rs.156299034 Rs.77831153 49.792070/2071 1088 Rs.155063005 Rs.59097620 38.11

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People Forum for Human Rights (People Forum) has been providing Legal Aid and Paralegal Service through its Legal Aid Center since last 5 years to distress and destitute migrant workers. People Forum`s Free Legal Aid and Paralegal Ser-vice to migrant workers project provide free legal aid and para-legal service to 207711 persons in this fiscal year. Likewise, among the total victims, 422 victim’s cases were solved with NPR 5, 67, 33,898 (56.73 million) compensation. The ratio of compensation provided through People Forum legal aid service has also been increased in last fiscal year.

l. Supreme Court Verdict on Foreign Employment CasesTable: 11

Supreme Court of Nepal has mandate to review appeal on judgement made by FET on the foreign employment cases. The above, table no.11 indicates only the scenario of appeal made by FET on foreign employment cases to Supreme Court. Among the total 28 cases referred by FET to Supreme Court from fiscal year 2067/73 Supreme Court has reviewed 3 of the cases and ruled 25 which shows that FET is in track to pro-mote and protect the rights of Nepalese migrant workers.

11 1005 persons got legal aid service and got 1072 legal counseling service

Total Judgments of Supreme

CourtFY 2067-2073

Convicted by For-eign Employment Tribunal (FET)

Acquitted by Foreign

Employment Tribunal (FET)

Supreme CourtReview

Ruled Cases Reviewed

28 8 20 25 3

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m. Compensation Provided by FEPB in Death CasesTable. 12

Source: FEPB, 207312

Foreign Employment Promotion Board (FEPB) has mandate to utilize its welfare fund including compensation provided to fam-ilies of deceased migrant workers. Within this mandate, Foreign Employment Promotion Board (FEPB)13 has been providing com-pensation to death cases relating to foreign employment. Accord-ing to data revealed by FEPB, Malaysia has the highest death rate of Nepali migrant workers. Cardiac Arrest and Natural Deaths are highest in rate. It is also one of the areas which is covered by legal aid scheme of People Forum.

ConclusionIn order to make the labor migration safe, well managed, dignified and protect the rights and interest of migrant workers, Foreign Employment Act, 2007 was enacted in 2007. However the Act has not been imple-mented properly. Due to lack of proper enforcement of law and lack of accessible and efficient law enforcement mechanisms, victims are not getting adequate /timely justice. Most of Nepalese migrant workers were cheated before departure by the agent and recruitment agencies. Mean-while, those who manage to go in destination country are working in vulnerable situation with excessive exploitation and without insufficient legal protection by the Nepalese Government. Thus, Government of Ne-pal should pay due attention towards the reformation of Nepalese law in line with International standards and new promulgated Constitution14 of Nepal 2072.

12 http://fepb.gov.np/downloads.php?id = 2accessed on 22nd February, 201713 Total death cases in fiscal year 2072/2073 : 995 Male, 6 Female14 As a result of People Forum continue advocacy with CA, article 51 is in constitu-

tion with addressing labour migration issue.

S.N Country Cardiac Arrest

Traffic Accident

Natural Death

Suicide Hearth Attack

Work Accident

Murder Other Total Percentage

1. Malaysia 142 24 85 44 39 50 0 41 425 48

2. Saudi Arabia 28 57 111 33 13 28 0 3 274 31

3. Qatar 68 14 31 12 15 31 0 7 178 20

4. UAE 15 9 12 7 9 4 0 1 57 6

5. Kuwait 2 11 7 10 9 0 0 0 33 4

6. South Korea 2 3 10 5 1 0 0 0 12 1

7. Baharain 4 1 5 1 1 1 0 1 12 1

8. Oman 3 0 1 0 0 0 0 1 3 0

9. Japan 1 0 0 0 0 0 0 0 1 0

10. Afghanistan 2 0 0 0 0 0 0 1 3 0

11. Maldives 0 0 1 0 0 0 0 0 1 0

12. Poland 1 0 0 0 0 0 0 0 1 0

13. Uganda 0 0 0 0 1 0 0 0 1 0

14. Germany 0 0 0 0 1 0 0 0 1 0Total 268 119 245 112 89 114 0 55 1001 114

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Annex I Annex II Annex IIIList of laws/Policies related to Migrant Workers

List of Institution Mechanisms Dealing with Labor Migration

List of Human Rights Treaties ratified by Nepal

I. Foreign Employment Act, 2064

II. Foreign Employment Regulation, 2064

III. Foreign employment Policy, 2068

IV. Domestic Workers Directive, 2072

I. Ministry of Labor and Employment (MoLE)

II. Department of Foreign Employment

III. Foreign Employment Promotion Board

IV. Foreign Employment Tribunal

V. Consular Department, Ministry of Foreign Affairs

VI. Labor Attaché

I. International Covenant on Economic, Social and Cultural Rights (14th May 1991)

II. International Covenant on Civil and Political Rights(14th May 1991)

III. International Convention on the Elimination of all forms of Racial Discrimination (30th January, 1971)

IV. Convention on Elimination of All Forms of Discrimination against Women (22nd April, 1991)

V. United Nations Convention against Transnational Organized Crime (23rd December, 2011)

VI. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (14th May, 1991)

VII. Convention on the Rights of the Child (14th September 1990)

VIII. Convention concerning Forced or Compulsory Labor (3rd January 2002)

IX. Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990 (Not Ratified yet)

Annexes

13