Nepal has implemented, repealed and re-implemented various bans and restrictions on the migration of women migrant workers and / or migrant domestic workers since 1998, the year in which all women migrant workers were first banned from migrating to Gulf countries following the highly publicized death of a domestic worker, Kani Sherpa, in Kuwait. Over subsequent years, total bans or restrictions on certain countries, occupations and / or ages have been implemented and repealed under the auspices of protecting migrant domestic workers / women migrant workers from exploitation and abuse abroad. One of the principal causes and risk factors for forced labour and trafficking, identified by past research led by the International Labour Organization (ILO)’s Work in Freedom (WiF) Programme, is restrictive and gender-insensitive migration policies. These include restrictions on movement in the form of bans and restrictions on the departure of women migrant workers and migrant domestic workers from origin countries to seek foreign employment. Issues in the recruitment and foreign employment industry in Nepal are multi-faceted and extend far beyond migration bans and restrictions. While bans and restrictions have led to increased migration through informal channels, migration through formal channels in Nepal and throughout South Asia does not guarantee safety for migrant workers nor prevent them from facing exploitation (Zimmerman et al., 2015). The foreign employment registration process in Nepal is often gender-blind and does not account for the intensive stigma surrounding female labour migration. Consequently, those women who are legally able to access the labour permit application process still risk criticism or reproach from families, communities and administrative officials. Nevertheless, restrictive emigration regimes have been shown to exacerbate legal and protection shortcomings in the foreign employment industry for women migrant workers and migrant domestic workers and contribute to their further marginalization and vulnerability. Combined with structural social stigma and discrimination which has driven female labour migration into hidden corners of the foreign employment process, migration restrictions have prevented women from availing of mechanisms such as pre-departure trainings, insurance and welfare fund schemes, while increasing their dependency on informal recruitment intermediaries in spaces where information on safe migration is not typically readily available (ILO, 2015a; Paoletti et al., 2014; GAATW, 2017; Mak et al., 2019; Pyakurel, 2018). Bans have inhibited women’s access to redress and retribution mechanisms in the event of abuse, and most importantly, have accomplished little in improving their living and working situations once abroad (Ibids). Migrant and human rights organizations both within Nepal and abroad have also repeatedly decried bans and restrictions as violating key national and international human rights frameworks, including commitments to freedom of movement, gender equality, employment and non-discrimination made in the country’s 2015 Constitution (ILO, 2015a; FWLD, 2018; UN OHCHR, 2018). Notably, while past bans have focused specifically on migrant women, the most recent ban on foreign employment for migrant domestic workers (in place from 2017 to 2020) ostensibly applied to both males and females. However, migration for domestic work from Nepal continues to be a phenomenon undertaken almost entirely by women, and many experts asserted that this discursive shift did little to change how bans were implemented on-the-ground. In September 2019, Nepal’s Ministry of Labour, Employment and Social Security (MoLESS), in consultation with Nepal’s foreign missions and upon instruction from the Nepal Parliamentary Committee of Industry, Commerce, Labour and Consumer Interest (CICLCI) lifted the ban on re-entry of migrant domestic workers. This action granted certain migrant domestic workers a re-entry permit which allowed them to legally return to Nepal to visit and then return to the same destination country / job after their visit – albeit only if they had originally migrated with approval from the Nepali government. Members of the aforementioned Parliamentary Committee, accompanied by representatives of MoLESS and its Department of Foreign Employment (DoFE), as well as the Nepal’s National Human Rights Commission (NHRC), then sent a delegation to three Gulf countries – Oman, UAE and Saudi Arabia – to reassess the situation for migrant domestic workers in early March 2020. Following consultations regarding bans and restrictions, as well as other frameworks related to women migrant workers and migrant domestic workers, the Committee requested that the Government repeal the 2017 ban in September 2020, subject to seven conditions including the signing of BLAs with all destination countries, the existence of separate labour laws, and mandatory training of migrants before starting work. In the ILO’s efforts to support the construction of regular migration pathways for women migrant workers and migrant domestic workers which respect their safety, dignity, wellbeing and human and labour rights and which allow them to enrich their own lives, the lives of their families and communities back home, the ILO Country Office for Nepal commissioned this present review between February and June 2020 as a comprehensive analysis of legal and policy frameworks governing foreign employment for women migrant workers and migrant domestic workers. This review builds off of ILO’s previous study of migration bans, No Easy Exit: Migration Bans Affecting Women from Nepal published in 2015, but fills an important research gap by focusing on the policy formulation phase itself. The findings will identify and characterize the ways in which stakeholders (governmental and otherwise) formulate policy narratives, negotiate policies and regulations and invoke knowledge claims in order to justify regulatory and policy interventions related to women migrant workers, migrant domestic workers and associated thematic areas – including anti-trafficking frameworks, frameworks combatting forced labour, domestic work and more. The following research explores: (1) what the prevailing norms, ideas and beliefs in policy spheres about work, women, migration and domestic work are and how these norms and beliefs influence the continued use of migration bans; (2) characterizes the parties that maintain support for or wish to repeal bans; (3) determines ongoing concerns of policymakers that maintain support of bans and what their plans are to address these concerns; (4) analyzes the role and use of empirical evidence in the policymaking process; (5) measures Nepal’s progress on the negotiation of bilateral labour agreements (BLAs) and memoranda of understanding (MoUs) with specific reference to migrant domestic workers, and what impact this has on bans and restrictions; and (6) the transnational dynamics which impact this process.

A comprehensive analysis of policies and frameworks governing foreign employment for Nepali women migrant workers and migrant domestic workers DOWNLOAD

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