Nepal Kuwait

Nepal - Kuwait: Legal Framework

Nepal has ratified seven of the nine core international human rights treaties, but it has not engaged in meaningful cooperation with international human rights mechanisms. Nepal has ratified seven of the eight ILO fundamental conventions but has failed to ratify several instruments specifically designed to protect migrant workers’ rights. The country’s 2007 Foreign Employment Act (FEA) regulates private recruitment agencies, and empowers the Department of Foreign Employment (DOFE) to investigate fraudulent activities. The FEA mainly focuses on procedures although it provides some protections for migrant workers throughout the arc of the recruitment process, granting the right to insurance, setting a limit to the fees recruitment agencies can collect from workers, and prohibiting gender-based discrimination. The Act requires pre- departure orientation sessions, Nepali-language contracts, and airport contact points, but offers limited provisions in relation to their return and reintegration. It also fails to offer protections for undocumented migrants who are excluded from accessing grievance mechanisms and legal assistance. In addition to the FEA, Nepal’s civil and criminal law addresses fraudulent practices in recruitment, human trafficking, bonded labour and slavery. Civil society actors were heavily involved from an early stage in the development of the FEA, although worker organisations currently report that they are being excluded from policy and legislative reforms, in a trend consistent with the wider shrinking of civic space in Nepal. Recruiters also complain they are left out of the process, despite concerns about the influence of opaque industry lobbying efforts.

Kuwait has ratified seven out of the nine core international human rights treaties, and seven of the eight core ILO conventions. Kuwait’s legislative and policy framework on fair recruitment processes is weak, with little clarity on who is liable for recruitment costs. Domestic work is the only sector where the law is clear on criminalising the acceptance of any recruitment costs from migrant workers, and in general there are almost no fair recruitment regulations. Indeed, there is a general perception across many of Kuwait’s business institutions that fair recruitment is a problem predominantly to be addressed in origin countries. Undocumented migrants, even those who lose their documents as a result of abusive employment, are vulnerable to arrest and deportation merely on account of their status. Whilst Kuwait has one of the GCC’s most progressive attitudes to workers’ organisations, collective bargaining rights are still severely restricted. There is no formal role for workers’ organisations in the process of drawing up new legislation and policy relating to fair recruitment, although the ILO has welcomed the establishment of an Advisory Committee for Labour Affairs, which brings together representatives of government, the Kuwaiti Chambers of Commerce and Industry, and the Kuwaiti Trade Union Federation.

Recommendations to the Government of Nepal:

  • Ratify the ILO Private Employment Agencies Convention, 1997 (No. 181) and in keeping with its provisions, fully prohibit the payment of fees and related costs, in line with the ILO definition, by migrant workers to recruitment agencies.
  • Review and update the Foreign Employment Policy, which dates to 2012, prior to the transition to federal governance.
  • Increase the transparency of processes to develop new laws and policies around migrant workers, and invite more structured participation from unions, civil society and the private sector.

Recommendations to the Government of Kuwait:

  • Ratify the ILO Private Employment Agencies Convention, 1997 (No. 181) and in keeping with its provisions, amend the 2010 Private Sector Labour Law to explicitly prohibit the payment of recruitment fees and related costs by all migrant workers, in line with the ILO definition.
  • Amend the 2010 Private Sector Labour Law to hold employers responsible for recruitment fees paid by their employees to third parties, including outside Kuwait.
  • Provide domestic workers with the protection of the Private Sector Labour Law.