Undocumented—not illegal

  • Labour protections must include undocumented migrants

Dec 4, 2018-

Issues pertaining to the rights of migrant workers, especially thosewho areundocumented, have raised growing concerns throughout the world.  Despite renewed global attention on this issue, Nepali migrant workers—undocumented workers in particular—continue to face numerous obstacles in accessing justice and ensuring protection of their most basic rights. The protection of undocumented workers’ rights is particularly important in a country like Nepal, where undocumented migration has become a common phenomenon. Nepalese migrant workers holding ‘undocumentedstatus’ are often erringly identified bythe term ‘illegal’—an insensitive label that is attached with stigma and dehumanisation.

The labour relationship between employer and worker is therefore discriminatory because of the latter’s misperceived status. As a result,undocumented migrant workers often have no choice but to resort to settling forinferior working conditions withlower wages..The undocumented experience is characterised by these low wages, poor and often dangerous working conditions, disproportional repercussions for minor offences, and curtailed liberties. Despite having to endure regular exploitation, the workers have limited avenues to turn to appeal for help. Ironically, there appears to be a system of impunity for those who take advantage of the vulnerability of these workers and a system of punishment for the workers themselves.

Contributing Factors

It is difficult to estimate the number of undocumented migrant workers, but various studies suggest that many Nepalese migrants are in an undocumented situation either because of forged documents provided by their manpower agencies or because they traveled through irregular channels. Many factors prompt this irregular travel, and, in many circumstances, the situation is exacerbated further by inaction from the government of Nepal. Presently, one glaring factor fuelling labour migration through irregular channels is the ban on female migrantworkers in domestic employment. This counterproductively forces female migrant workers to journey through irregular avenues as many choose to become vulnerable to severe risks in the process rather than risk their livelihood and exercise their own agency. The situation of undocumented migrant women merits special mention because they face double discrimination: first as women in a highly patriarchal society and then as irregular migrants.

Another contributing factor is the government’s ‘free-visa-free-ticket’ announcement of July 2015, whichaimed toshiftthe responsibility of ensuring financial costs associated with recruitment to employers. As the implementation of this policy has been riddled with loopholes, many workers still have to withdraw hefty loans to afford the cost of migration. As a result, they end up staying in the destination countries beyond the period of their ‘documented’ status outlined in their contract.

Undocumented status is also linked with treacherous and exploitive practices by recruiting companies. As highlighted by Amnesty International, workers often transition into ‘undocumented’ status through so-called ‘visa trading,’ a deceptive recruitment practice that entails hiring a migrant for one sector or job but later directing the migrant to another sector or job after selling the visa to another recruitment agency or employer. When the workers discover that they are not employed in the companies or sectors to which they were promised, they leave the companies, but unfortunately, they are left without visas and documents that permit them to stay. In some cases, the recruitment companies have already seized these documents. The Nepali embassies situated in countries where these practices are common need to fulfill their duty to assist these workers in obtaining travel documents. As of present, reports from workers themselves indicate that assistance is limited and only surface-level.

Guarantee Rights

Recent initiatives from the government of Nepal in introducing and institutionalising positive changes in the sector of labor migration should not be minimalised in current discourse. In the recent past, the country has witnessed greateracknowledgement and discussionvis-à-vis labor and migration governance. While the larger part of labor governance discussions have revolved around the protection of documented migrant workers, the government has perhaps deliberately excluded undocumented migrant workers from the shell of access, security and protection afforded to their documented peers. In recent examples of social security announcements such as the Colombo process ministerial meetings in Kathmandu, the foreign employment regulation of Nepal barely spared anyspace for thediscussion on the rights and protection of undocumented migrant workers. Althoughthe protection of the rights of irregular migrants has become an increasingly relevant concern inNepal,we have not seen a long over-due proportional policy response.

Therefore, a collective effort from both the country of origin as well as the host is imperative to ensure stronger regulation of the sector and to improve the rights and protection of migrant workers. This will require bargaining legislative protections with host countries and collaborating on bilateral labour agreements.

An example of a positive step forward in this regard includes themuch-awaited ‘Global Compact on Safe, Orderly and Regular Migration’ (GCM), an intergovernmental agreement aiming to promote respect, protect and fulfill the human rights of all migrantsregardless of their migration status. If given the space and legitimacy it deserves, we can be hopeful that the compact will produce positive global implicationsfor undocumented migrant workers. If this hope is realised, the government of Nepal must seize the opportunity to be the part of this global movement.


Devkota is an advocate.

Published: 04-12-2018 07:50

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