Nepal - Kuwait: Implementation and enforcement

In 2020 Nepal’s labour ministry called for a “reduction in misalignments” between different parts of the government, acknowledging that inter-agency coordination is a key priority and challenge. There are clear examples where poor coordination - for example the signing of significant bilateral MOUs without making plans to establish diplomatic missions - is likely to directly impact migrant workers. Domestically, the Department of Foreign Employment’s (DOFE) investigation capacity and skills have been the subject of concern for several years and appear out of step with the scale of the abuses identified in Nepal’s recruitment industry. A 2020 MOU between DOFE and the police may help; until recently migrant workers could not bring recruitment cases to the police unless they amounted to trafficking, and for all other cases workers had to file complaints with the understaffed DOFE in Kathmandu. This should allow police to carry out preliminary investigations based on worker complaints and to fully investigate unregistered recruiters, referring only agency cases to DOFE. DOFE’s regulatory and investigative role has been severely undermined by corruption, which can have a direct impact on worker outcomes. Numerous senior officials have been arrested for accepting bribes to remove recruitment agencies from government blacklists.

Kuwait’s sponsorship system tends to undermine labour protections. Domestic workers, for example, can be charged with “absconding”, which violates the country’s immigration law, when they seek to leave employers who violate their obligations under the 2015 domestic workers law. Labour inspections have increased in intensity in recent years, though in many cases these merely involve visits to offices to check paperwork, without engaging with migrant workers. Kuwait has increased its capacities to inspect agencies recruiting domestic workers. The government’s commitment to inspections and penalties appears to be closely linked to negative coverage of labour abuses in the international media. In 2018, for example, there was a dramatic spike in inspection activity, which followed considerable attention over the mistreatment of Filipino workers. Generally, Kuwaiti authorities treat labour violations as administrative infractions, rather than criminal investigations and procedures, relying on arbitration, fines, and “blacklisting”. Anti-corruption in relation to the recruitment of migrants has moved up the government’s agenda in recent years, with investigations uncovering corrupt recruitment practices by officials, linked to human trafficking offences. There is some scepticism about the government’s commitment to tackling such practices, with authorities still wary of publicly pursuing cases against high-ranking officials.

Recommendations to the Government of Nepal:

• Pending the adoption of a zero-cost migration model, fully enforce penalties against recruitment agencies charging fees above the legal limit, in accordance with relevant provisions of the FEA.
• Significantly increase the Department of Foreign Employment’s investigative capacity, by increasing staffing and ensuring that all staff undergo rigorous training.
• Ensure that the signing of the 2020 DOFE-Nepali police MOU is followed up with increased coordination between DOFE and law enforcement authorities and greater involvement by the police in tackling recruitment fraud and abuse
• Increase resources devoted to investigating and prosecuting corruption in DOFE; hold accountable any official accused of demanding or accepting illegal payments for access to government migration programmes, including through referring them to law enforcement agencies, and make information publicly available, on at least an annual basis, on the number and nature of such cases identified.

Recommendations to the Government of Kuwait:

• Continue strengthening the capacity of the labour inspectorate and ensure that it has the necessary resources as well as linguistic and investigatory skills to conduct private interviews with workers during visits and identify cases of serious abuses beyond the non-payment of wages, including in relation to recruitment practices.
• Significantly reform the Public Authority for Manpower’s monitoring of recruitment agencies to ensure it accurately assesses and transparently reports on private employment institutions’ efforts to ensure worker protection, including fee payment and responsiveness to worker grievances.
• Institute labour inspections of private residences hiring domestic workers - including unannounced visits.
• Undertake proactive investigations (and where there is sufficient evidence, criminal prosecutions) into corrupt recruitment practices on the part of employers and recruiters, and human trafficking.