The need to redefine immigration policy

In the absence of any rights-friendly mechanism at the national level, the status of the rights of Nepali workers who go for foreign employment is also pathetic. In light of this situation, an attempt has been made to highlight the need for a national immigration policy and related issues in this article.

As the core of the labor migration policy, a rights-friendly mechanism should be established permanently to protect the rights and interests of workers going to foreign employment. Before entering into the issue of how the rights-friendly mechanism should be established, it is necessary to discuss the important aspects of the rights-friendly mechanism. It is necessary to find a rights-friendly mechanism mainly from the state structure and the national economy.

State structure phase: The new state system envisioned after the 2062/63 people's movement was institutionalized by the constitution issued in 2072. After that, the comprehensive changes in the state structure and fundamental rights and the new Acts/laws created for the implementation of fundamental rights confirm the policy need for a rights-friendly mechanism in relation to foreign employment and labor migration in the changed scenario. Article 33 of the Constitution ensures the fundamental right to employment, while Article 51 envisages foreign employment as a solution to rising unemployment nationally under the state policy. However, the policies and laws related to foreign employment, which are necessary to address the changing environment, have not been amended. This is the main challenge seen in the field of labor migration.

With the dynamics in the governance structure, although various thematic and sectoral laws are being gradually changed, there has not been a topical upgrade in the laws related to foreign employment and labor migration and the regulation of this sector. Therefore, this area seems to be falling into the clutches of more problems.

Economy: In a situation where the internal indicators of the national economy are continuously declining, there is an increasing dependence on the external indicators. As the contribution of major sectors including agriculture and industry is shrinking, the unemployment rate is continuously moving towards the upward path. In addition, various political transitions, the epidemic of Covid-19 and the humanitarian crisis including war seem to be leading to more complicated situations for employment related problems. Especially after the recent outbreak of the Ukraine-Russia war, the Israel-Gaza conflict and the tension in Central Asia as a result of the recent outbreak of Covid-19, foreign employment is under a lot of pressure and all employment sectors are affected. This is further confirmed by the world record set by related indicators including unemployment worldwide. As a result, Nepalese economy is suffering from the Dutch disease of remittances while the domestic sector is being discouraged.

The existing regulatory laws are not able to address the new problems created in the field of foreign employment and labor migration due to structural changes in the economy. Migrant workers have become victims of existing inadequacies in national laws. Migrant workers are mainly affected by problems such as death, dismemberment, lack of legal protection, abuse before departure, during work and during return. Especially in the context of the scenario revealed by the Corona epidemic, even during the humanitarian crisis, there is no situation where the migrant workers can return home safely. Even in the case of those who have returned, the situation of having to return abroad has increased since they could not be integrated into the society. It shows the inefficiency of existing policies and laws.

has made it clear. Therefore, the policies and laws to be made now should be basically focused on the rights and interests of migrant workers and their families. For a long time, voices have been raised regarding the rights and interests of migrant workers and their families, so it has become inevitable to address them immediately. These policies and laws do not appear to be labor-related rights friendly. Looking at the structure of the law, the manpower involved in foreign employment is basically more focused on the professional compliance of the company. Our laws are silent about the rights of migrant workers. For this reason, it is imperative that these laws and policies be amended through a rights-based approach. Migrant workers should be recognized not only as 'beneficiaries' but also as 'rights holders' and create laws related to the provision and regulation of foreign employment and labor migration.

The rights of workers in legal documents

When drafting policy and legal documents related to the arrangement and regulation of foreign employment and labor immigration, the rights of workers should be built based on their rights. In this regard, mainly tripartite recognition can be adopted.

Fact-based policy making: In Nepal, the national policy making process is very unorganized and unscientific. There is a situation in which the practice of making policy without being based on facts is still persisting in foreign employment and related fields. Since the prevailing policies and laws formulated in relation to the management and regulation of this sector have been formulated in a factual vacuum, questions are being raised about its concrete effectiveness. The policies and laws that were prepared to regulate the situation about forty years ago have not been able to address the current environment and some bills have been rejected without even being registered in the parliament. Since the problems created by inadequate and ineffective policy laws can only be resolved through scientific methods, it is imperative that the laws to be made be based on practical research studies, needs-based evaluation, policy monitoring and its log frame analysis (technical part) including expert suggestions or social dialogue. In addition, it seems inevitable to adopt a policy formulation method based on disaggregated data of qualitative and numerical facts collected in relation to related topics such as immigration data, immigrant skills, gender-disaggregation.

Policy-making based on rights: Without ensuring the rights of migrant workers, there can be no efficient management of this sector. As the sophisticated recognition of human rights continues to develop globally, it is relevant from a humanitarian, economic, and social point of view to include the broader interests of migrant workers. While formulating the policy, it is necessary to include the aspects of immigration and the overall development of migrant workers and their families, including civil, political, economic, social and cultural rights. In particular, the process of policy making includes the right to dignified life, the right to equality, the right to communication, the right to justice, the right to information, the right against exploitation, and the rights provided under various international and regional mechanisms related to human rights and labor migration to which Nepal is a party. have to do The state should move towards becoming a party state through accession and ratification of the main international mechanisms to which Nepal is not a party state, and follow such mechanisms and treaty practices in the national law. Similarly, there is an urgent need to internalize important aspects of labor migration and labor exploitation, including decent work, migration and development, social dialogue, gender migration policy, skill development, return and reintegration, covered by the multilateral framework of the International Labor Organization into the national policy. Similarly, as the champion nation of the Global Compact on Migration, Nepal has an obligation to play its role. It is necessary to formulate a national policy on scientific and collective labor migration based on facts, rights-based, gender responsive, trafficking and other migration issues and adopting the Dhaka principles.

In addition to national laws, bilateral labor agreements also directly affect the broader status of migrant workers' rights, so it is necessary for the state to demonstrate diplomatic skills in this regard. According to the study, there is an urgent need for the state to proceed with concrete negotiations in order to make provisions based on the protection of the rights and interests of migrant workers in the bilateral labor agreement, to build a strong basis for the rights and to provide an effective bargaining tool for the practice and implementation of the rights. For example, India's Repatriation of Prisoners Act 2003 stipulates bilateral agreements regarding the transfer of sentences, including those of migrant workers. Bilateral labor agreements play a key role in protecting the human rights of migrant workers by shifting the punishment to Nepal, which is one of the main problems of Nepalese migrant workers in the Gulf countries, and they have to bear the harsh legal and sentencing standards there.

Policy stability and development goals: Sectoral coordination is an important aspect of national policy formulation. This not only discourages the practice of policy fragmentation but also facilitates qualitative returns from optimal utilization of resources. When Nepal is practicing federalism through the constitution, policy coherence has become more important. In addition, the implementation of the United Nations and international treaties should be integrated in a well-planned manner through the national policy.

As a member of the United Nations, Nepal has included the implementation of sustainable development goals with 17 goals and 169 objectives in its development plan. However, the blueprint for achieving these goals is not clear. For example, the strategic planning and development policies needed to reduce inequalities in gender equality, decent work, bonded labour, trafficking and migration governance have yet to be formulated. Although some of these agendas are included in the Fifteenth Five-Year Plan (2075/76 to 2080/81) of the National Planning Commission, it is very necessary to maintain policy coherence by paying attention to the fact that it should be reflected in the development policy and strategy. By including and implementing these agendas related to foreign employment and labor migration, the rights of migrant workers will be ensured on the one hand, and a strong immigration regime will be established on the other hand. Overall, it will help to strengthen the social and economic development of Nepal.

Since the field of foreign employment is directly connected with other development policies, state policies and policies focused on fundamental rights, necessary coordination should be maintained between these policies and immigration policies. In particular, the state should move towards maintaining policy consistency through the integration of policies created for the implementation of fundamental rights such as health, employment, education, and housing. The elements of labor migration should be addressed at the local, provincial and union levels through employment, labor and other national development policies, taking into consideration the federal government system.

At the end of the

The great mobilization of skills, capital, experience and technology acquired by migrant workers during foreign employment will become a reality only when the full protection of workers' rights and interests is ensured at every stage of labor migration. Since the prevailing political and legal system is insufficient and not up to date, it has not been possible to establish a rights-friendly mechanism. Despite being a major contributor to the national economy, permanent labor migration is on the rise due to the lack of a solid framework for social and legal protection of migrant workers who have gone to foreign employment. It has demanded the attention of the state to address the latest problems seen in labor migration by redefining the immigration policy. Therefore, taking into account the changing environment, formulating a scientific and fact-based labor migration policy, creating a legal system focused on the rights and interests of migrant workers involved in foreign employment is the major need today. In this regard, the cooperation, coordination and positive initiatives of the three governments as well as the meaningful participation of stakeholders, beneficiaries and experts in related fields will be important.