migrant workers in saarc: dignity and freedom across...

Migrant Workers in SAARC:

Dignity and FreedomAcross Borders

Caroline Bates

December 2009

Pakistan Institute of LabourEducation & Research ST-001, Sector X, Sub-Sector V

Gulshan-e-Maymar, Karachi-75340, PakistanTel: (92-21) 6351145-7

Fax: (92-21) 6350354Email: [email protected]

South Asia Alliance forPoverty Eradication (SAAPE)288. Gairidhara Marg, Gairidhara Kathmandu Bagmati Nepal Telephone: +977 1 4004813, 4004985 Fax: 977-1-4004508 & 4443494E-mail: [email protected]

South Asia Alliance for Poverty Eradication (SAAPE)SAAPE is a network of like-minded civil society organisations, mass-based groups and movements,academics, trade unions, community based organisations and activists from Bangladesh, Bhutan, India,Maldives, Nepal, Pakistan,Afghanistan and Sri Lanka, working to jointly strategize and take actions tocontribute towards poverty eradication and achieve effective changes in the economic and socio-politi-cal arena to combat the harmful economic policies of globalisation, privatisation and neo-liberalisation.The Alliance aims to build solidarity and a shared civil society vision for the region, strengthen and sup-port national level organisations working on key issues.The Alliance facilitate research to support advo-cacy and lobbying activities aimed at regional and national level decision-makers of the South highlight-ing the concerns and perspectives of marginalised groups and advocate pro-poor policies and to con-solidate their struggles and experiences to influence the international players, particularly of the North.The SAAPE Secretariat is based in Kathmandu at the office of Rural Reconstruction Nepal.

Pakistan Institute of Labour Education and Research (PILER)Pakistan Institute of Labour Education and Research (PILER), established in 1982, is a not-for-profit, citi-zen sector organization engaged in research, education, policy advocacy and networking in the areas oflabour rights, social justice and human development, and regional solidarity and peace. PILER, as aresource centre, facilitates the labour movement in building a wider social consensus on core labourrights through advocacy and linkages with local, national, regional and global partners.PILER considers militarization, state conflicts and social intolerance as major barriers to realizing labourrights, and engages with peace movements at national, regional and global levels. PILER is active in anumber of peace initiatives at regional level.

Caroline BatesMs Caroline Bates has a BA (Law) from the Cambridge University and an LL.M from the School ofSouth Asian and African Studies (SOAS) specializing in sharia law and women's rights.Currently based in Islamabad, as a consultant on Law and Justice at the Asia Foundation, Ms. Bates hasworked as solicitor and a barrister, undertaking legal consultancy in London. She has also served as asenior lecturer in Labour related courses.Ms Bates also worked as a partner at the Rowley Ashworth Solicitors, UK and as an associate at theHempsons Solicitors, and the Mayer Brown Roe and Maw. She regularly lectures on employment andEuropean issues at national and international forums.

Pakistan Institute of LabourEducation & Research ST-001, Sector X, Sub-Sector VGulshan-e-Maymar, Karachi-75340, PakistanTel: (92-21) 6351145-7Fax: (92-21) 6350354Email: [email protected]

South Asia Alliance forPoverty Eradication (SAAPE)288. Gairidhara Marg, Gairidhara Kathmandu Bagmati Nepal Telephone: +977 1 4004813, 4004985 Fax: 977-1-4004508 & 4443494E-mail: [email protected]

This paper aims to analyse the con-trol of migration across five SouthAsian Association for RegionalCooperation (SAARC) states;

India, Pakistan, Bangladesh, Nepal, and SriLanka; assess the protections afforded tomigrants, and restrictions and burdensplaced upon migrants and potentialmigrants. It also seeks to identify deficien-cies in the existing systems and put for-ward proposals for reform of the currentstructure. The position of three otherSAARC states, the Maldives, Bhutan andAfghanistan is beyond the scope of thisstudy.

The paper examines the rights of migrantsin international law and goes on to exam-ine the policy and legal frameworks of thevarious states concerned. It further ana-lyzes the effectiveness of various regulato-ry regimes and the effects of those regimesupon migrants and potential migrants. Theeffectiveness of the various regimes is thentested against the international frameworkof rights for migrant workers. Deficienciesand lacunae are identified.

The paper will examine voluntary and reg-ular/documented migration. Detailed con-sideration of the issue of irregular/undocu-mented migration and trafficking is beyondthe scope of this paper, although linksbetween the two phenomena are examinedwhere appropriate.

Research undertaken for this study hasbeen paper-based, examining treaties, legis-lation and policies, as well as reviewing lit-erature relevant to the subject. The directexperiences of individual migrants from thevarious states are beyond the scope of theresearch undertaken.

The conclusions reached by the study indi-

cate that the priority for states should bethe facilitation of free movement of labour,whilst ensuring the welfare of migrantswithin their borders and of those migratingto other states. It is essential that eachstate (if it does not already do so1) has inplace a national plan for migration and, itratifies, implements and monitors adher-ence to the various applicable human rightsconventions affording rights to migrants,and in particular the InternationalConvention on the Rights of MigrantWorkers and Members of Their Families.

Further, it is clear that each state examinedmust take steps to simplify and reduce thecosts of its migration system, minimisingthe opportunity for corruption and widen-ing the scope of those having access to reg-ular migration to poorer sections of thepopulation. Finally it is clear that statesmust take into account the particularimpacts of migration upon female popula-tions and take appropriate steps to supportboth their independence and welfare,whether they are themselves migrants orwhether they remain in the sending state.

Migrant Workers in SAARC: Dignity and Freedom Across Borders 3

Section 1Migration IssuesWithin SAARC

On 22 January 2008, at a meet-ing of the InternationalOrganisation of Migration inDubai as part of the Colombo

Process, the Human Rights Watch called forofficials to discuss and address the wide-spread violations of migrant workers'rights.2 They drew attention to practicessuch as the non-payment of wages, physicalviolence, confiscation of passports anddeception arising as part of recruitmentprocesses.

The vulnerability of migrant workers is welldocumented and continues to be of con-cern despite a broad range of both interna-tional and national measures in place toprotect their rights. This paper seeks toexamine the practices and protectionsexisting in five South Asian states, India,Pakistan, Bangladesh, Nepal, and Sri Lanka,relating to migrant workers. As will beseen, these states contribute significantly tothe world's pool of migrant labour and are,to varying degrees, dependent upon theremittances received as a result of migra-tion. However, their national and interna-tional responses to the issue of protectionof migrants vary and all fail to fully ensurethe basic rights of their citizens. Of partic-ular note is the failure of the SAARC, ofwhich the states are members, to have inplace any coherent strategy on migrationdespite its ambitious aims for a movetowards a South Asian free trade and com-mon currency regime.

The Historical Contextof MigrationThe United Nations estimated that as at2005, there were 191 million migrants,approximately 3% of the world population,living outside their country of birth.3

Levels of migration are predicted to rise to

230 million by 2050.4 Half of the migrantpopulation is estimated to be female.

Migration is not a modern phenomenon.Historically populations have moved, indi-vidually or in groups, for a variety of rea-sons, from economic to socio-political.However, the development of nation statesled, in various areas of the world, toincreased regulation of migration. Equally,the development of various colonial pow-ers and the period of colonial expansioncreated a state-sponsored need for thetransfer of workers from one territory toanother for the purposes of labour supply.Additionally, across various areas in SouthAsia, traditional patterns of migration havedeveloped, based around tribal affiliations,family networks and seasonal work.Independence saw mass migration acrosswhat are now the borders of India,Pakistan, Bangladesh, Nepal and Sri Lanka,estimated at between 35 and 40 millionpeople.5

Post-partition states have sought to regu-late the flow of populations both into andout of their territory. This has been doneby the imposition of visa controls for thoseentering and, in various states, exit controlsfor those seeking to leave. As will be seen,the states examined in this study haveadopted this model, restricting the exit oflabour through various levels of control.This approach contrasts sharply with thatof states within Europe and NorthAmerica, which do not seek to restrict theoutflow of labour, regarding emigration as acomponent part of the right to freedom ofmovement.

In South Asia, the political reality of rela-tions between states has significantlyrestricted the ability of migrants to movefrom one SAARC state to another. Poor

Migrant Workers in SAARC: Dignity and Freedom Across Borders4

Introduction

political relations between states such asIndia and Pakistan have led to restrictivevisa policies and, as will be seen, levels ofmigration between SAARC states (at leastin formal, documented terms) have beenextremely low. However, migration contin-ues within the region, largely undocument-ed, in response to various factors.

Current Levels of andTrends in MigrationAccurately monitoring migration levels andtrends has proved to be difficult, as figuresare reliant upon individual states' defini-tions and internal monitoring of migration.Irregular/undocumented migration createsfurther difficulties in the accurate collationof figures.

However, it is clear that South Asia con-tributes considerably to the pool ofmigrant labour. The World MigrationReport6 estimates that Asia as a whole pro-duces 49.7 million migrants, withBangladesh alone producing 4.1 millionmigrants.7 Patterns of migration have devel-oped over time,with initial migration to theUK and Europe to accommodate postWorld War II labour shortages. This migra-tion was largely long-term, with migrantsbeing joined by family members and settlingpermanently. However, the Middle Easternoil boom of the 1970s saw a major changein migratory patterns in South Asia, with amove to short-term migration by singlemales to work in the construction sector.Large-scale but short-term migration tothe Middle East by low skilled workers hascontinued to dominate migration fromSouth Asia, although with increased partici-pation of women engaged in domesticwork.8 Seventy five percent of India'smigrant population is estimated to bebased in the Middle East.9 Similarly, themajority of Pakistani,10 Bangladeshi, and SriLankan11 migrant workers are Middle East-based. Nepal has typically followed a dif-ferent model, with the majority of workersmigrating to India, but the country has seena large increase in migration to the MiddleEast.12

Levels of documented migration asbetween India, Pakistan, Bangladesh, Nepal,and Sri Lanka remain negligible in compari-son to the Middle Eastern position.

Factors Influencing MigrationThe indicators influencing those whomigrate are often referred to as "push" and"pull" factors. Push factors are widelyrecognised as including: economic factors,lower living standards and restricted lifechances; political and social instability; con-flict and warfare; ecological degradation;natural disasters; family networks; seasonalpatterns of work; and porous borders. Pullfactors are regarded as including: higherwages; improved job opportunities; better

living conditions; freedom from instabilityand persecution; aging populations inreceiving countries; and gaps in the labourmarket.13

Countries have also traditionally beendivided as between sending and receivingstates i.e. those exporting and thoseimporting labour. Bangladesh, Nepal, andSri Lanka are sending states, exportinglabour. However, as will be seen in the con-text of both India and Pakistan, some statesfunction as both sending and receivingstates, exporting labour whilst receivingconsiderable numbers of refugees and


workers from neighbouring states.

A significant factor influencing levels ofmigration is the stance taken by individualstate governments. Those states exportinglabour in the developing world frequentlydo so with two explicit aims: to reduceunemployment (and thus increase internalstability) and to increase foreign exchangeincome. These two factors have, as will beseen, influenced the regulatory regimes putin place to control and monitor migrationin the various states reviewed.

Remittances are a vital form of income,representing the second largest source ofexternal funding in the developing world.14

A detailed analysis of the importance andmanagement of remittances is beyond thescope of this report. However, it is impor-tant to note the general background. Fortypercent of the world's poor are estimatedto reside in South Asia and forty five per-cent of the population of the South Asiancountries live on less than one dollar aday.15 Poverty figures for the sample statesshow a clear economic imperative formigration: India (28.6%); Pakistan (32%);Bangladesh (49.8%); Nepal (32%); and SriLanka (25%). Twenty percent of the world'sremittances are sent to South Asia, with78% bound for India, 12% for Bangladesh,2.1% for Pakistan, and 1.1% for Sri Lanka.16

Benefits and NegativeAspects of MigrationMigration provides opportunities formigrants, their families and the variousstates concerned. There is, for themigrant, obvious scope for securing remit-tances, savings and investment, the possibil-ity of widening his/her skills base and diver-sifying the economic risks he/she may facein the future.

States too benefit from migration. Thesending state has a clear interest in theremittances received from migrant work-ers. However, it is also important to recog-nise the benefits to receiving states.Stereotypical ideas suggesting that existingindigenous workers are disadvantaged by

displacement or depression of wage levelshave not been borne out by research and itis clear that migrant labour instead fillsskills gaps and shortages.17

However, whilst migration is most fre-quently driven by survival issues,18 and canbe poverty-reducing, international migra-tion can be seen as increasing inequalitybetween migrants and non-migrants.19

Whether this increased inequality occurs islargely dependent upon the opportunitiesafforded to returning migrants to investproductively, a factor largely determined bystate policy, infrastructure and job oppor-tunities upon return.20 Whilst migration canbe utilised to reduce inequality, it can beseen that state policy is vital in maximisingthe benefits of migration beyond the indi-vidual migrant.21

Additionally, the position of womenrequires particular note. Women have notevenly benefited from migration. As will beseen, some states, particularly those inSouth Asia, have restricted women in termsof migration on the grounds of protection.However, those women who do notmigrate but are left behind by migratingpartners have reported mixed outcomes;some find new independence within fami-ly/social structures, whilst others becomemore vulnerable in the absence of a part-ner.22 Further, the increase in female migra-tion to the Middle East in the domestic sec-tor has led to the establishment of 'GlobalCare Chains', in which women are removedfrom their own families and instead providecare for families of employers abroad. Thiscan leave families without adequate sup-port beyond the provision of financethrough remittances. As is argued below,states should provide freedom of choice towomen in terms of migration, but mustensure that, given their particular vulnera-bilities once outside their home state, ade-quate protections are in place for theirsafety.


States too benefitfrom migration.The sending statehas a clearinterest in theremittancesreceived frommigrant workers.However, it isalso important torecognise thebenefits toreceiving states.

General Provision

Migration is a phenomenonaffecting the international com-munity as a whole. The statusof migrants has therefore

received attention in terms of variousinternational treaties. The rights ofmigrants have been addressed by both theInternational Labour Organisation (ILO)and the United Nations (UN). As will beseen, however, the rights of migrantsremain of particular concern.

The various UN instruments make fewexplicit references to the rights of migrantworkers and there is need to ensure theirrights in each of the treaties forming thebasic framework of rights. These includethe International Covenant on Civil andPolitical Rights (ICCPR); the InternationalCovenant on Economic, Social and CulturalRights (ICESCR); the Convention on theRights of the Child (CRC); the Convention

on the Elimination of All Forms ofDiscrimination Against Women (CEDAW);the Convention on the Elimination of AllForms of Racial Discrimination (CERD);the Convention Against Torture and otherCruel, Inhuman and Degrading Treatmentor Punishment (CAT); and the Conventionon the Rights of Persons with Disabilities(CRP).

However, the Human Rights Committeehas made clear that states are required toprovide the rights set out to individualswithin their territory/jurisdiction withoutdiscrimination and such rights must not belimited to nationals of the state. Despitethese broad-ranging protections, the pre-carious position of migrants in many stateshas continued to give rise to cause for con-cern. In consequence, a Special Rapporteuron the Human Rights of Migrants wasapproved by the Commission on HumanRights in 1999, currently a position held byMexico’s Jorge Bustamante.


Section 2The InternationalPosition in Relationto Migrant Workers

ILO FrameworkThe ILO has produced a wide-rangingframework of non-binding standards forlabour provision in general, and formigrants, in particular.

The major ILO provisions in relation tomigrant workers can be found in theMigration for Employment (Revised)Convention 1949 (No. 97) and the MigrantWorkers (Supplementary Provisions)Convention 1975 (No. 143). These instru-ments outline principles of non-discrimina-tion, equality of treatment in various areas,such as remuneration, accommodation,social security, taxation and address abusiveworking conditions. Additionally, in 1998,the ILO issued the Declaration on theFundamental Principles and Rights at Work,applicable to both national and migrantworkers, setting out four fundamental prin-ciples: freedom of association; the elimina-tion of forced and compulsory labour; theabolition of child labour; and the elimina-tion of discrimination in respect of employ-ment and occupation.

The CRMW 1990Despite the framework of human rights setout above, it was recognised that the inter-national system was required to providesomething beyond general rights to equali-ty and non-binding guidance. In conse-quence, the Convention on Protection ofthe Rights of All Migrant Workers AndMembers of Their Families 1990 (CRMW)was drafted. It came into force on 1 July2003. The Convention was designed tomake clear the applicability of human rightsto migrant workers, and to fill gaps andlacunae identified in existing general pro-tection.

The basic framework of the CRMW mir-rors that of other UN rights treaties. Itestablishes a Committee to monitor andcomment upon the performance of mem-ber states and establishes a state's ability tovoluntarily agree to both state and individ-ual complaints.

The rights enunciated by the CRMW areessentially divided into those which areapplicable to all migrants, either document-ed or undocumented, and those whichapply solely to documented migrants.

The Convention seeks to provide a mini-mum floor of rights available to all migrantsand their families regardless of their legalstatus. These rights encompass: the right tolife; not to be subjected to torture, forcedlabour or arbitrary deprivation of proper-ty; freedom of thought, conscience, religionand opinion; privacy; liberty and security;equality before the courts; and not to be


imprisoned for the failure to fulfil a con-tractual obligation. Additionally, there arerights not to have travel documents confis-cated or destroyed; to consular access; torecognition before the law; to take part intrade union activities; to receive access tosocial security and emergency medicaltreatment; to transfer earnings; to equalitywith nationals in terms of remunerationand basic terms and conditions; and not tobe subjected to collective expulsion. Thechildren of migrants are given rights to beregistered at birth and access to education.These rights do not, however, regularise

the status of undocumented migrants.

Documented migrants and their familiesbenefit from an array of enhanced rights, inaddition to those set out above. Theseinclude liberty of movement; the rights totake part in the public affairs of their stateof origin; equality of treatment in educa-tion, housing, vocational training, health andsocial services; participation in cultural life;single taxation arrangements; and the rightto choose their remunerated activity. Inthe field of employment law, migrants shallbenefit from equality in terms of protection


against dismissal, unemployment benefitsand access to anti-unemployment meas-ures. There is additional protection in rela-tion to expulsion.

Importantly, various categories of workers,not covered by the general human rightsprovisions discussed above, are defined asmigrants for the purposes of thisConvention. These comprise frontier, sea-sonal, itinerant, project-tied, specified-employment and self-employed workers.

The various member states are required torespect and ensure to all migrants and theirfamilies within their territory or jurisdic-tion the rights set out without discrimina-tion.

Whilst a number of the rights set out arecontained in the other UN instrumentsdescribed above, a number are new andcontentious. For instance, Article 8 setsout the right of a migrant and his/her fami-ly members to leave any state, includingtheir state of origin, such right not beingsubject to any restriction save in respect ofnational security, public order, public healthor morals, or the rights and freedoms of

others.The right of unrestricted free move-ment is one which runs contrary to thepolicies of many South Asian states, whichseek to restrict and regulate free move-ment by exit control. As will be seen, all ofthe states in this study seek to do so tosome extent.

Further, Article 66(1) sets out that theright to undertake operations with a viewto the recruitment of migrant workers shallbe restricted to a public service or bodyestablished under a bi- or multi-lateraltreaty. However, Article 66(2) does pro-vide that private agencies may undertakesuch activities subject to authorisation,approval and supervision by public author-ities. It is likely that states operating anessentially privatised system of recruitmentwith minimal or ineffective state supervi-sion would find this obligation problematic.

Adoption of InternationalStandards in South AsiaDespite the importance of political andeconomic migration in South Asia, stateshave been reluctant to accept internationalstandards related to migration of labour.The ILO Conventions (97 and 143) havenot been ratified by India, Pakistan,Bangladesh, Nepal, and Sri Lanka. Of thefive states, only Sri Lanka has acceded tothe CRMW. Bangladesh signed the CRMWon 7 October 1998. Whilst signature isintended to be a preliminary step to ratifi-cation, no further steps have been taken.

The UN commented in its Report onInternational Migration in October 2008:23

"Despite the growth of migration in Asiaand the Pacific, protecting the rights ofmigrants remains at the fringes of discus-sion…Whilst there are some bilateralagreements between some countries oforigin and destination in the region, mostlythrough memoranda of understanding,those primarily regulate the movement ofworkers and have little impact on the treat-ment migrant workers receive in the coun-try of employment."


General Models

Four distinct models can be identi-fied in terms of national migrationpolicies: laissez faire; state-regulated;state-regulated and managed; and

state monopoly.24 The laissez faire model, inwhich emigration is left entirely to themarket, is generally adopted by high-income states such as the UK. The state-regulated model, in which sending coun-tries use law to regulate the recruitment ofnationals for work abroad but the actualrecruitment is left to the market has beenadopted in some South Asian states,notably India. The state-regulated and man-aged model allows both state and privateenterprises to recruit and place workerswithin a system of state regulation. Thismodel has, as will be seen, been adopted byPakistan. Finally, some states, such asChina, hold a state monopoly on recruit-ment and placement of workers.

As will be seen, the success or failure ofthese models is largely dependent upon theability of the state to provide an affordableand properly regulated service to migrants,which maximises their choices and min-imises costs. The opportunity for corrup-tion and the failure to provide regulationincreases cost, excludes the poorest sec-tions of society from opportunities tomigrate and encourages undocumentedmigration.

The following section will analyse the mod-els of migration management adopted byIndia, Pakistan, Bangladesh, Nepal and SriLanka, the protections afforded to migrantsand the restrictions placed upon them.

General CritiquesAs will be seen, each of the states analysedseek to restrict migration by their citizens


Section 3The NationalPositions of theSample States

for work purposes.They do so in the guiseof seeking to protect the actual and poten-tial migrants concerned in the context ofmass migration. However, the mechanismsadopted, in fact, place significant constraintson the freedom of movement of migrants,whilst affording little real protection fromexploitation.

All of the states examined restrict freedomof movement by imposing restrictions onmigrants' ability to exit their state of originwithout appropriate clearances and formal-ities. These restrictions range from limitingmigration to listed and approved states tothe imposition of visa restrictions basedupon the terms of the work offered.

Additionally, each of the states surveyedprovides migrants on a mass scale to theworld labour market, largely in the MiddleEast/Gulf, along with, increasingly, SouthEast Asia. The methods adopted in manag-ing mass migration have varied in their suc-cess but, as will be examined, the complex-ity in nature of the controls, the number ofcontacts with officialdom and the expensesincurred by migrants have rendered theprocesses problematic for migrants. Theprocesses operated by states can be seenas income generating as opposed to pro-tective in nature, and the failure of states toimplement the protective measures that doexist, particularly in relation to the regula-tion of recruitment agencies, leave migrantsvulnerable to unchecked abuse andexploitation.

Finally, the issue of income generation forstates will be seen as a significant driver instates' failure to increase levels of protec-tion for migrants once they are successful-ly placed abroad. States which rely signifi-cantly upon remittance income (all of thosereviewed save for India) have demonstrateda marked reluctance to render their stockof migrant labour "uncompetitive" in com-parison with other labour-providing states.This failure, coupled with these states' lackof commitment to adopt and adhere tointernational labour standards, leavesmigrants vulnerable to well—documentedabuses once placed abroad.

IndiaOverview

India is, as commented above, not a partyto the ILO conventions on migrantworkers nor the CRMW. It has been,

however, a member of the InternationalOrganisation on Migration (IOM) sinceJune 2008. India rates 126/177 on theHuman Development Index.

Despite India receiving a significant propor-tion of the world's remittance income(23.7 billion dollars25), the impact of inter-national migration on its overall populationis insignificant, representing just 0.5%.Women make up half of its internationalmigrants. However, the impact of interna-tional migration in a number of states with-in India, particularly Kerala, is very signifi-cant.26 Sixty percent of India's internationalmigrants originate from three states:Kerala; Tamil Nadu; and Andhra Pradesh.The vast majority of these internationalmigrants travel to the Middle East, withSaudi Arabia and the UAE alone accountingfor fifty five percent of all internationalmigrants.27

India has adopted a national plan of actionon migration, much of which is concernedwith internal migration and which isbeyond the scope of this study. Legislationalso regulates internal migration in theform of the Inter-State Migrant Workmen(Regulation and Conditions of Service) Act1979.

RegulationEmigration from India was, until 1983, reg-ulated by the Emigration Act 1922. India incommon with Pakistan and Bangladeshinherited this regime on independence.The 1970s oil boom and the consequentexponential rise in migration to the MiddleEast exposed the inadequacies of the exist-ing regulatory system. The Governmentthen enacted the Emigration Act 198328 andintroduced accompanying EmigrationRules.


Migration issues straddle two main min-istries in India, the Ministry of Labour andthe Ministry of External Affairs. The formeroperates the system set out in the Act anddescribed below, and now works through asub-ministry of Overseas Indians. The lat-ter deals with passport issues, bilateralnegotiations and also operates a system ofLabour Attachés in the main receivingcountries in which India maintains foreignmissions.

Essentially, the Act and Rules provide for aregulated system of emigration, withrecruitment and placements being made byprivate agencies or individuals, licensed andregulated by the state.

The starting point of the legislation is thatno citizen may emigrate for the purposesof work without exit clearance.29 The sys-tem of recruitment and placement is to beundertaken by licensed agents under thesupervision and monitoring of aProtectorate of Emigrants.30

The Protectors of Emigrants, appointed bythe Protectorate, are required to provideadvice and assistance to emigrants andthose intending to emigrate, inspect con-

veyances, inquire into the treatment ofmigrants on their voyage and during theirstay abroad, and aid and advise emigrantson their return to India.31

The Act prohibits unlicensed agents fromcarrying on a recruitment business32 andputs in place a system of licensing basedupon various factors such as financialsoundness, trustworthiness, adequatepremises and experience, along with theability to pay a fee and security.33 A licenceis issued for a period of 5 years,34 renew-able for up to 25 years and it may be can-celled on various grounds, such as a deteri-oration in the financial position of the hold-er, recruitment contrary to public policy,conviction of an offence of moral turpi-tude, drug related convictions or violatingthe terms of the licence. Licensing is car-ried out by the Protector General ofEmigrants.35

The Act puts in place a procedure forrecruitment by foreign employers, whichrequires the use of a recruiting agent or theobtaining of a permit,36 granted on similarcriteria to licences for recruiting agents,and valid for one year.37


Emigration by a worker requires emigra-tion clearance sought from the Protectorof Emigrants, such application being madethrough the licensed recruitment agent oremployer.38 Clearance applications must beaccompanied by a copy of the terms andconditions of employment, along with evi-dence of the fee and security having beenpaid.39 Emigration clearance may be refusedwhere there is evidence that the terms ofemployment are exploitative; the employ-ment would be unlawful; contrary to publicpolicy in India; violate norms of dignity anddecency; living or working conditionswould be substandard; emigration wouldnot be in the best interests of the emigrant;or that no provision has been made forrepatriation costs.40

The Act also sets out a number of offencesand penalties. These include an offence ofemigration outside the provisions of theAct by a migrant,41 along with offences ofoperating as an agent without a licence orrecruiting without a permit, furnishing falseinformation, altering documentation, andcheating or overcharging an emigrant.42

Offences are punishable by imprisonmentof up to two years and a fine of up to twothousand rupees. Importantly, no prosecu-tion can be pursued without prior sanctionof the Central Government.43 Further, theAct retains the ability to exempt certainstates, foreign employers and public under-takings from some or all of the provisionsof the Act.44

Detailed Rules have also been produceddealing with the various procedures to befollowed and the fees and securitiesrequired. The current registration fee for arecruiting agent is five thousand rupees andthe security deposit payable varies(dependent upon the number of workersconcerned) from three hundred thousandto one million rupees.45 The maximum feethat may be charged by a recruitment agentto a migrant ranges from two thousandrupees for an unskilled worker to fivethousand for a skilled worker.46

Detailed requirements are also set out asregards emigration clearance in terms of

the documents required and the factors tobe considered. In particular the employ-ment agreement must specify theperiod/place of employment; wages andother terms; food allowance; accommoda-tion arrangements; working hours, over-time etc; transportation costs; repatriationarrangements in the event of death; and themode of settling disputes.47

The most common problems encounteredby international migrants are violations ofthe recruitment process (such as over-charging and the need to pay bribes) andbreaches of agreed working/living condi-tions once abroad (such as premature ter-mination, changed terms, delayed salary,forced overtime, and confiscation of pass-ports). It is rare for migrants to complain,for fear of losing their jobs or facing diffi-culties in securing further work abroad. Ifhowever, they do so one of two mecha-nisms applies. If a complaint is made whilsta migrant is abroad, to a foreign mission,the Labour Attaché or other staff will referto the Protector of Emigrants. If a com-plaint is made on a migrant's return, theProtector of Emigrants will hold a publichearing. If the complaint essentially con-cerns the foreign employer, the complaintwill be referred to the Embassy and if nosatisfactory response is received, anemployer may be blacklisted. If the com-plaint relates to the conduct of therecruiter, the police may be notified and acase registered.48 As noted above, howev-er, the approval of the central Governmentis required for a prosecution.

Additional ArrangementsThe requirement for oversight of termsand conditions by Protectors of Emigrationhas been significantly reduced in terms ofexemptions from emigration clearance, as alarge number of fields have now been clas-sified as ‘Emigration Check Not Required’.Thus those emigrating who do not requireclearance encompass managerial workers,professional degree, diploma and graduatedegree holders, income tax payers, govern-ment servants, all persons who have beenabroad for more than three years previ-ously, diplomatic staff, seamen, nurses, and


The mostcommon problemsencountered byinternationalmigrants areviolations of therecruitmentprocess andbreaches ofagreed working/living conditionsonce abroad.

persons over 60. Additionally those withpermanent immigration visas valid in theUK, USA and Australia are exempt.

India has also, in the light of friendly rela-tions with and traditional migration pat-terns between Nepal and Bhutan, put inplace open border arrangements.Migration between India and Bhutan, andIndia and Nepal is therefore unregulated.

Recent DevelopmentsThe lack of any centralised strategy has ledthe state government in Kerala to establisha specific department to deal with interna-tional migration issues, prompted largely byrepatriation issues following the first Gulfwar and the mass repatriations thatensued.49

The boom in technology service provisionand outsourcing to India led to the creationof the Ministry of Information Technology,which deals with invitations from foreigngovernments for contracts covering ITskilled migrants. Its work is however, limit-ed to the IT field.

In November 2008, the Indian Ministry ofOverseas Indian Affairs announced an over-haul of the emigration system and commis-sioned a 20 million rupee study, 'Emigrationin E-Governance'. In February 2009, theMinistry of Overseas Indians attempted tointroduce an Emigration Bill, to amend theexisting provisions, but was prevented fromdoing so by administrative delays in the LawMinistry.50 The Bill aimed to increase theinformation to be provided to emigrantsprior to departure and to restrict the abil-ity of employers to alter terms and condi-tions following the emigrant taking uphis/her post.

Critiques of theIndian SystemAnecdotal evidence of corruption andabuse of the licensing and fee charging sys-tem is widespread. Nair has noted thathouseholds would have benefited to amuch greater extent from internationalmigration had "adequate and effective gov-

ernment control and supervision" been inplace.51

Significant criticisms can be made of thesystem currently adopted by India. Thesecritiques are, however, hampered by thelack of available data.

The primary criticism of the current sys-tem relates to the restrictions placed uponindividuals' rights of free movement andthe complexities (and attendant opportuni-ties for subversion and corruption) of thearrangements in place.

India restricts the right of free movementby rendering its citizens' migration rightssubject to exit clearance and compliancewith the Emigration Act 1983. Whilst therequirement for exit clearance has beensignificantly ameliorated by the increasingnumber of exempt categories, theseexemptions relate largely to those who areeducated, professionally qualified or previ-ously internationally mobile. The barriersput in place in relation to migration andcompliance with the Emigration Act there-fore falls disproportionately upon sectionsof the society who are less wealthy or edu-cated. This in turn widens the opportunityfor exploitation of those who are least like-ly to be equipped to negotiate the complexprocess of migration, and who are leastable to meet the fees and expensesinvolved in doing so.

The criminalisation of migration outsidethe Emigration Act System is of particularconcern, particularly in the face of a setupthe complexity of which may prove to be adriver towards undocumented/irregularmigration.

The existing "protective" regime in placeprovides little evidence of adequately safe-guarding the interests of migrants. The reg-ulation of licensed agents appears minimaland the lack of data suggests that it is like-ly that the regulatory regime intended tocheck and approve the appropriateness ofterms and conditions etc. is in fact seensimply as a revenue-generating bureaucrat-ic process. The structure of the process,


The existing"protective"

regime in placeprovides little

evidence ofadequately

safeguarding theinterests ofmigrants.

with its interactions between migrants,agents and bureaucrats is likely to producesignificant opportunity for misuse and cor-ruption. The lack of published data oninvestigations into compliance and com-plaints is likely to mask significant over-charging by agents and the payment ofbribes to officials. The requirement forstate sanction for any prosecution is clear-ly unhelpful and is indicative of a systemwhich provides little accountability. Theanecdotal evidence of overcharging andcorruption clearly point to the state's fail-ure to operate the system protectively.

In addition, the structure adopted by Indiato control and manage emigration fails toensure the basic rights of migrants whilst inIndia and once they are abroad. India hasfailed, at federal level, to demonstrate anycoordinated approach to the setting of orrequirement for agreed labour standards.Its response to the issue of migration inter-nationally has been ad hoc: with the Keralastate government taking matters into itsown hands in order to establish basic min-imum protections, such as repatriationarrangements. India's only national initia-tive has been in relation to the IT sector,which has benefited the better-educatedand more internationally mobile groups inthe society.

India has failed to make use of model con-tracts, bilateral agreements or internationalstandards to improve protections for thoseof its citizens who are successfully placedabroad. The system of addressing griev-ances raised by migrant workers is ofcourse limited by the constraints of inter-national law. However, India has failed toput in place any form of joint liability inrespect of agents for the wrongdoing offoreign employers, thus leaving its migrantworkers exposed to significant abuse whilstemployed abroad. This failure is worsenedby the deficiencies in the current system tohave in place any equivalent to the welfarefunds provided by other states surveyed,further reducing the scope for protectingmigrants by failing to establish a suitablefund to assist in cases of hardship of unex-pected disaster.

PakistanOverview

Pakistan is, as commented above, not aparty to the ILO conventions onmigrant workers nor the CRMW. It

has been, however, a member of theInternational Organisation on Migration(IOM) since 1992. Pakistan rates 134/177on the Human Development Index.

International migration involves 2.5% of thepopulation, with women representing44.8% of international migrants, despiterestrictions, discussed below, on femalemigration. It is estimated that four millionPakistanis reside abroad, the vast majorityof current migrants, 94%, being placed inthe Gulf States. The vast majority ofPakistan's international migrants originatefrom two provinces, Punjab and the NorthWest Frontier Province.52

Fifty percent of Pakistan's migrants are illit-erate/unskilled, forty percent are skilledand two percent are white collar/skilled.Eighty five percent migrate without theirfamilies.

In terms of state policy, Pakistan has no for-mally declared migration policy, althoughone is currently being considered. Pakistandoes have in place a Labour Policy 2002and Labour Protection Policy 2005, neitherof which deals with the issue of migrantlabour. Migration does however, play a sig-nificant part in the country's economy,bringing in 4.3 billion dollars per annum.53

RegulationThe regulatory framework in relation toemigration from Pakistan is set out in theEmigration Ordinance 1979 and theEmigration Rules 1979, which were updat-ed in 2004. As with India, these rulesreplaced the Emigration Act 1922, inheritedon partition and independence.

The Pakistani system, unlike India's stateregulated system, is a setup which com-


bines elements of both state regulation andmanagement with the creation of a Boardof Emigration and Overseas Employment(the Board), to control, regulate, and over-see the welfare of emigrants,54 and theOverseas Employment CorporationLimited (the Corporation), to promote theemigration of Pakistani citizens.55 The sys-tem also establishes a Protector ofEmigrants56 and the appointment of LabourAttachés57 to safeguard and promote theinterests of migrants at home and abroad.

The Act provides that lawful emigration canonly be effected by a person who holds aletter of appointment, work permit,employment visa or emigration visa, or isselected for emigration by a foreignemployer through an OverseasEmployment Promoter or in accordancewith a bilateral treaty.58

Overseas Employment Promoters are

licensed agents. The licensing process issupervised by the Protector of Emigrantsand is subject to the payment of a fee andsecurity.59 Prior to emigration, both theemigrant and the Overseas EmploymentPromoter must appear in person beforethe Protector of Emigrants. The currentlicence fee is 10,000 rupees and the securi-ty payable is 300,000 rupees. Licences areissued for one year and are renewablethereafter in 3-year periods.

Failure to comply with the Act by an emi-grant may result in a sentence of five yearsimprisonment and a fine. A migrant breach-ing the terms of an agreement with a for-eign employer may incur a fine of up to10,000 rupees.60 Causing or assisting unau-thorised emigration may result in a sen-tence of between five and seven years anda fine.61 Fraudulently inducing emigrationor charging in excess of the prescribed feedue from an emigrant may attract a sen-


tence of 14 years imprisonment and afine.62

The detailed processes to be followed, andfees and securities due are set out in theEmigration Rules. The process set out iscomplex. Demands for labour, once madeby a foreign employer, must be approved bythe Board or Protector of Emigrants.Once the request is approved, the recruit-ment of labour is undertaken by theCorporation itself or by an OverseasEmployment Promoter (OEP). The OEPthen conducts a recruitment exercise andany migrant selected must then lodge a feewith a bank in respect of the OEP's fee, anda bank certificate is produced and passedto the OEP. The migrant must then obtaininsurance63 and arrange to appear, with theOEP, before the Protector of Emigrants.The Protector of Emigrants must be satis-fied that the migrant is suitably qualified,the terms and conditions of the offer havebeen explained to the migrant and areunderstood. The work agreement is thenstamped and a fee paid, along with adeposit to the Welfare Fund discussedbelow. Once these requirements are satis-fied, the agreement is registered andstamps placed on the migrant's passport.The Registration is then lodged with thebank, which in turn releases the fee paid bythe migrant to the OEP.

The service charge payable by a migrant toan OEP is currently 4,500-10,000 rupees,dependent upon the salary of the employ-ment concerned. The OEP may also chargefor ticketing, medical, work permit, levy, visaand documentation expenses. Fees payableto the Government are in the form ofstamp fees of 100 rupees, a fee of 2,500rupees and a levy to the Welfare Fund of1,050 rupees.64

The Rules establish a Welfare Fund,65 whichis to be invested and utilised by a furtherbody, the Overseas Pakistani Foundation,whose role is to fund social welfare, hous-ing and educational facilities for migrantsand their families.66

The Rules also establish a Code of

Conduct for OEPs,67 which ranges fromgeneral record keeping to detailed restric-tions of the migration of women.Currently, Pakistan prohibits migration fordomestic service by women under 35.68

Violations of the employment agreementby the migrant are a crime, as set outabove. Violations by the employer are dealtwithin two ways.69 Where a complaint ismade whilst a migrant is abroad, he/shemay seek the assistance of a LabourAttaché in reaching a settlement or pursu-ing the matter through local labour courts.Complaints may be made within Pakistanto the Protector of Emigrants, save that nocomplaint can be made about an OEP aftersix months of joining the service abroad.Where there is concern regarding an OEP,a show cause notice may be issued andserious cases matters may be referred tothe Federal Investigation Agency.

Recent DevelopmentsPakistan has recently developed a draftNational Plan on Migration, which remainsincomplete at the time of writing.

Critiques of thePakistani SystemAs with India, significant criticism ofPakistan's system of emigration control canbe made, both in relation to the restric-tions imposed upon freedom of movementand the failure to have in place measureswhich are genuinely protective of migrants'interests during the migration process andonce abroad.

Pakistan significantly restricts the ability ofpotential migrants to exercise their right offree movement by adopting a mandatoryrequirement of exit clearance. Unlike India,this requirement has not been amended bya series of exemptions and applies there-fore to the majority of foreign work place-ments. Additionally, the system criminalisesthose who seek to migrate outside the sys-tem of exit clearance. This criminalisationprovides for further state interference intothe rights of free movement.


As with India,significantcriticism ofPakistan's systemof emigrationcontrol can bemade.

In addition, Pakistan criminalises thosebreaching foreign employment agreements.Thus, an employee who leaves employ-ment, refuses to work under the terms ofengagement or does not meet his/her con-tractual requirements commits an offence.This arrangement, long abandoned in otherlegal systems, creates an obligation to anemployer similar to bonded labour andoutlawed in numerous international instru-ments. It is clearly in conflict with any aimto protect migrant workers once abroadand places a heavy obligation upon thosewho may find themselves in disadvanta-geous situations or changed circumstancesonce abroad.

In terms of the mechanism intended toregulate migrant labour, the system isextremely complex, requiring multiple con-tacts with state, private agencies, and banks.These multiple contacts maximise theopportunity for manipulation and corrup-tion. Anecdotal evidence suggests thatsuch manipulation of the system is frequentbut little data is available.

Despite its complexity, this system, in com-mon with the others reviewed, fails to setclear and transparent standards for theapproval of calls for labour or terms andconditions. There is, therefore, little evi-dence of actual policing by theProtectorate of the terms upon whichemployment is offered or the supposedlevel of protection afforded.

It appears therefore that, in common withthe Indian system, the protective elementof the mechanism is lacking and replaced bya bureaucratic revenue-generating process.

The level of license fees and guaranteessought from agents is low, in comparison tothe potential available revenues. This givesadditional scope to agents to operate inthe business despite lack of expertise orpotential contracts. This again leavespotential migrants vulnerable to abuse byagents who do not have in place any or suf-ficient genuine contracts. Further, in termsof licensing, there is little documented evi-

dence of investigations being carried out orlicences being revoked for malpractice,indicating that review by the state is likelyto be lacking.

Additionally, despite the establishment of aWelfare Fund to be administered by theOverseas Pakistani Federation, there havebeen criticism from civil society groups inrelation to the uses to which funds havebeen put, and the target groups covered.For instance, Aly Ercelan of PakistanInstitute of Labour Education andResearch, has commented that the organi-sation is one:

"for the support of emigrants and theirfamilies. However the [Foundation] focus-es entirely on the skilled and high incomeemigrants — operating some and support-ing other elite schools and colleges; spe-cialised health facilities in major cities;reserving expensive land in urbanschemes."70

Finally, the position of women remainsrestricted in relation to internationalmigration, with Pakistan imposing legalrestrictions on women under 35 migratingto take up employment in domestic serviceetc. Whilst Pakistan attempts to justify thisrestriction on grounds of protection, inreality this is an unjustified measure basedsolely on gender, and results in potentialfemale migrants being forced into undocu-mented migrancy and thus increases theirvulnerability.

In terms of protections afforded tomigrants once abroad, the current systemis again lacking. Pakistan has demonstratedlittle use of bilateral agreements or of anyoverall strategy for addressing concerns. Itdoes not have in place any form of joint lia-bility imposed upon local agents for abusesor failures by foreign employers and,despite its system of Labour Attachés, it hasmade no progress in engaging with majorlabour-receiving states to secure minimumstandards, model contracts, access tolabour courts or other realistic means bywhich migrants may seek redress whilstabroad.


In terms of themechanismintended to

regulate migrantlabour, the system

is extremelycomplex, requiringmultiple contacts

with state, privateagencies, andbanks. These

multiple contactsmaximise the

opportunity formanipulation and

corruption.

BangladeshOverview

Bangladesh has not ratified the ILOconventions but became a signatoryto the CRMW on 7 October 1998.

Since having done so, it has not taken stepsto ratify the Convention. Bangladeshbecame a member of the IOM inNovember 1990. Bangladesh administersits migration policies through the Ministryof Expatriate Welfare and Employment.Irregular/undocumented migration is a sig-nificant problem in Bangladesh and thestate is also developing a National Anti-Trafficking Strategic Plan of Action.

Bangladesh is currently ranked 140/177 onthe Human Development Index. It reliesheavily on migration as a source of foreignexchange income.The average annual flowof migrants from Bangladesh is estimated at250,000.71 The main flow of migration, some90 percent, is currently to the Middle East,with 4.4 million short-term migrants trans-planting to the Middle East from 1976 to2006.

Women have traditionally played a minorrole in documented migration fromBangladesh as the Government hasimposed significant restrictions on theirmovement out of the country. As is dis-cussed below, those restrictions have beenlargely removed and female migration fig-ures have risen from one to six percent ofthe overall total in 2006.72

Bangladesh received 5.4 billion dollars ofremittances in 2006, representing 11 per-cent of its GDP. Remittances make up thelargest source of the country's foreignexchange income.

RegulationBangladesh inherited, on independencefrom Pakistan in 1971, the Emigration Act1922. As in India and Pakistan, this provi-sion proved to be inadequate to deal with

the migratory pressures created by theMiddle East oil boom of the 1970s. The Actwas repealed and replaced by theEmigration Ordinance 1982. In 1990, aWelfare Fund was established.

Until 2002, migration issues were dealtwith by the Ministry of Labour andEmployment. A new Ministry ofExpatriates' Welfare and OverseasEmployment (the Ministry) was created inDecember 2002.

Also in 2002, Emigration Rules, made underthe Ordinance, came into force. TheMinistry is empowered to implement the2002 Rules. It has a dual role; to createemployment overseas and to ensure thewelfare of expatriates. The Bureau ofManpower, Employment and Training(BMET), originally established in 1976, isnow an executive agency of the Ministryand plays a role in implementing theOrdinance and Rules. In particular, BMETregulates and controls recruitment agen-cies, deals with the registration of job seek-ers, training, pre-departure briefings andthe resolution of legal disputes.73 BMETprovides, for instance, two-hour pre-depar-ture briefings to migrants covering cultural,social, and work issues. However, these arelimited to preparation for departure toSaudi Arabia, Kuwait, Malaysia and SouthKorea.74

Bangladesh has attempted a number of pol-icy models to control migration. Initially, inthe 1970s, migration was Government con-trolled. In 1981, the market was opened tothe private sector under licence. In 1984,the state again intervened with the cre-ation of Bangladesh Overseas-EmploymentServices Limited, a state controlled compa-ny with a direct recruitment role. In fact,the company has had minimal impact, deal-ing with only 0.31 percent of internationalmigration.

Bangladesh adopted a framework,'Overseas Employment Policy' in 2006, withthe stated aims of protecting migrantworkers, supporting regular migration andreducing irregular migration, regulating


Bangladeshreceived 5.4 billion dollars ofremittances in2006, representing11 percent of itsGDP. Remittancesmake up thelargest source ofthe country's foreign exchangeincome.

recruitment processes, addressing the needto reintegrate refugees, and promoting bet-ter coordination.75 Its overseas missionsplay a role in exploring the potential labourmarket, providing consular services andseeking to ensure the welfare of migrantsabroad.

The position of women in relation tomigration has been changeable.76 In 1981,the state introduced a ban on femalemigration, save for professionals. In 1987,this was replaced by a restriction on skilledand unskilled labour migration. In 1997, atotal ban, including one on professionals,was introduced. Following strong protests,this ban was removed and replaced withrestrictions that excluded professionals. In2003, the restrictions were limited toskilled and unskilled women under 35. Thishas now been reduced to a limitation onthose under 25 employed in domestic andgarment work. There is no age limit forother groups.77

The Emigration Ordinance provides thatonly those with valid travel documents, inthe form of a letter of appointment, workpermit, employment or migration visa,78 orhaving been selected by a recruitmentagency79 may migrate. Recruitment agen-cies are licensed by the government80 andtheir licenses may be cancelled or suspend-ed for improper conduct.81 There are penal-ties for breaching a foreign employmentcontract and abandoning a contract.82 Illegalmigration is punishable by up to one-yearimprisonment and a fine of up to 5,000Taka. Similar penalties exist for those facil-itating migration outside the Ordinanceand for overcharging migrants in relation tofees.83

The Emigration Rules 2006 provide furtherdetails as well as Rules for the Conduct andLicensing of Recruitment Agencies andRules for the Wage Earners' Welfare Fund.The Fund aims to provide services tomigrants in the form of hostels/briefingcentres and orientation programmes, toprovide assistance to migrants in need andto assist families of deceased migrants.

Figures show that the breakdown of meth-ods of migration is heavily skewed towardsthe use of personal/family networks, with57.45% of placements being arrangeddirectly, 41.10% arranged by agents and lessthen 2% by BMET and the BangladeshOverseas Employment Services Limited.84

Other Developmentsand TrendsBangladesh has attempted a number ofbilateral treaties with receiving states, suchas Iraq, Qatar, and Libya, and reached aMemorandum of Understanding withMalaysia in 2003. However, the conditionsagreed upon have been restrictive tomigrants, in terms of job mobility and per-sonal rights, and have not generally beenviewed as successful.85


The large number of emigrants andreturnees has prompted the formation ofself-help groups, the most prominent ofwhich are the Welfare Association ofBangladeshi Returnee Employees, theBangladeshi Migrant Centre and theBangladesh Women's Migrants Association.These groups have been active in support-ing and campaigning for migrants.

CritiquesPoints raised above in relation to the Indianand Pakistani systems of exit clearance canbe repeated in relation to the system oper-ated by Bangladesh. Bangladesh imposes alegal requirement for exit clearance whichlimits the freedom of choice and move-ment of its citizens. Additionally,Bangladesh, in common with Pakistan, crim-inalises both migration outside the legisla-tive framework and the abandonment of acontract once abroad. The latter restric-tion again, amounts to forced labour andfollows a model which is not in conformitywith most legal practice in other jurisdic-tions (outside South Asia) or various inter-national instruments.

Similarly, concerns regarding corruptionand manipulation, raised above in relationto India and Pakistan, can be repeated.However, the position in Bangladesh is par-ticularly extreme. Commentators havenoted high levels of corruption and, in par-ticular:

"a nexus…between high level state func-tionaries of receiving countries, theirrecruiting agents, a group of expatriatesBangladeshis and a section of Bangladeshirecruiting agents."86

These levels of corruption have renderedmigration through regular channels difficultas the entire system has been subverted.This subversion of the system may explainin part both Bangladesh's high level ofdirect/network-based recruitment -- avoid-ing the use of agents, and also high levels ofundocumented migrancy by those unwillingor unable to meet the financial require-ments of the system, taken together with

the bribes and additional fees levied.

These levels of corruption have replacedany semblance of protective aim behind theregulatory mechanism with an explicit aimof revenue generation, not only by thestate, but also by individual agents, officials,and bureaucrats working within the indus-try.

A further complication in the regulation ofBangladesh's current system is its geo-graphical base. All agencies are based inDhaka and are thus largely inaccessible tothose outside the capital. This necessitatesa wholly unregulated layer of sub-agencies,known as dalals. The dalal system involvesthe re-selling of visas by licensed agents inDhaka to unlicensed dalals, which existentirely outside the legislated system ofregulation. No steps have been taken toinstitutionalise this informal system or toaddress breaches of the licensing system asit currently exists. This informal system andthe issue of re-sale of visas clearly add con-siderable scope for abuse, excess charging,and corruption. A 2001 strategy documentto begin the registration of the informaldalal system remains unimplemented.87

The precarious situation in relation toBangladesh's attitude to female migration isalso problematic. Whilst the current situa-tion has become more favourable towardsfemale migration, limitations still exist andare a discriminatory restriction of women'sfreedom of movement. The past changesdemonstrate volatility in the attitude of thestate that leaves women's migration vulner-able to future changes to state policy.

In terms of securing the welfare of theBangladeshi migrant workers placedabroad, Bangladesh's efforts have not beenparticularly successful. The various bilater-al treaties and memoranda of understand-ing have been viewed as an exercise in ren-dering Bangladeshi labour "competitive" asopposed to safeguarding standards andwelfare with Bangladesh accepting restric-tions regarding job related rights as well aspersonal issues such as marriage rights onbehalf of its citizens.


NepalOverview

Nepal is not a signatory to the ILOconventions or the CRMW. Itbecame a member of the

International Migration Organisation inNovember 2006. Nepal ranks 138/177 inthe Human Development Index. It receives1.2 billion dollars in annual remittances andits international migration rate is 3 percent.Women currently represent 69.1 percentof Nepal's international migrants.

Nepal maintains open borders and unre-stricted migration with both India andBhutan.

RegulationNepal controls international migrationthrough the Ministries of Home andLabour. The provisions relating to migra-tion can be found in the Foreign

Employment Act 2007 and the ForeignEmployment Regulations made under thatAct.

The Act provides a state-regulated systemof emigration control. Management iseffected through the Department ofForeign Employment, the Board of ForeignEmployment Promotion and LabourAttachés in foreign missions. The role ofthe Board is to study the internationallabour market, explore labour treaties withother states, specify the curriculum forappropriate training institutions and orien-tation programmes, advise on charges andfees, and the issue of remittances.88

The Nepali Government publishes a list ofcountries permitted to operate businessesemploying Nepali nationals abroad.Nationals are sent abroad to fill job place-ments through licensed institutions, whichare required to provide deposits and guar-antees.89 Emigration by under 18s is pro-


hibited90 and the Act makes clear that selec-tion for emigration must not be made ongender discriminatory grounds (save wherea call for labour specifies a particular gen-der).91

The Act and Rules set out a process forrecruitment. When a call for recruitment ismade by a foreign employer the call mustbe approved by the Department, whichexamines the identity of the employer,numbers involved, requisition letter and thecontract of employment proposed. Wherethe terms and conditions offered areunsuitable for the qualifications of thosecalled, or are contrary to dignity, values,health, or no suitable security is provided, acall may be refused.92 Where permission isgranted, a licensed agent, selected in opencompetition,93 is then empowered toadvertise for, and select workers.94

Selection is carried out on the basis ofqualification and experience, age, physicalfitness, skills, training and any specific reser-vations in relation to gender or indigenousidentity.95 A list is then provided to theDepartment of those selected and the per-mission of the Department is requiredprior to an agent taking passports abroadin order to obtain appropriate visas.Following the provision to the Departmentof certificates in respect of training, health,insurance, the receipt of the fee paid andcopies of the employment contract, a stick-er giving permission to work abroad will beissued.96 Personal applications, outside theagency arrangements, are permitted whensupported by similar documentation.97

Health checks98 and training must be car-ried out at Government approved andlicensed institutions,99 with the Board set-ting the curriculum for such trainings.

Agents are licensed by the Department,subject to suitability and the payment of afee and security deposit.100 Licences areissued annually and may be cancelled formisdemeanours including forgery, failuresto reimburse deposits and other breachesof the Act or Regulations.101

The Government may issue a minimumwage applicable to migrant workers.

Maximum fees payable to licensed agentsmay be fixed. Insurance is compulsory inrespect of death and injury.102 The Act alsoestablished a Foreign EmploymentCompensation Fund, with the aim of pro-viding social security and welfare tomigrant workers and their families. Thefund receives contributions in the form ofdeposits from workers, investments fromdeposits, licence fees, training institutionlicence fees as well as grants and other sup-port.103 Its main tasks are to provide skillstraining, to call back injured workers, toprovide orientation for returnees, and totransport bodies of deceased migrants.104

Complaints against foreign employers whofail to abide by terms and conditions inemployment contracts may result in thelicensed agent being ordered to repay to amigrant the amount incurred in taking upforeign employment as compensation.105 Inaddition, criminal penalties are set out inrelation to operating an agency without alicence, sending minors abroad, sendingmigrants to countries unapproved by theGovernment, suppressing and altering doc-umentation and excessive charging offees.106 A system of Foreign EmploymentTribunals is established in which the gov-ernment appears as the plaintiff.107

CritiquesThere is little published material available inrelation to migration from Nepal or theimplementation of its, relatively new, legis-lated system.

Clearly Nepal's system of regulatory con-trol, like those of the other statesreviewed, is restrictive of migrants, limitingnot just exit clearance but also the coun-tries to which a migrant may migrate.These restrictions infringe upon the free-doms of choice and movement of Nepalicitizens in relation to migration.

The system adopted by Nepal appears toshow a high level of state regulation/con-trol, with state licensing of all levels ofagents, training institutions, medical facili-ties etc. In the past, systems which haveadopted highly regulated and controlled


Complaintsagainst foreignemployers whofail to abide byterms and conditions inemployment con-tracts may resultin the licensedagent beingordered to repayto a migrant theamount incurredin taking upforeign employment ascompensation.

models have not been particularly success-ful. However, Nepal presents a potentiallyunique situation. The vast majority of itsinternational movement is through unregu-lated migration, using open borders toneighbouring India. Additionally, it is asocially cohesive state, with a relativelysmall population, in which internationalmigration (to states other than India) willbe unusual. In these circumstances, suchlevels of state regulation may prove to bemore successful and operate to the benefitof migrants without them needing to haverecourse to undocumented migration.

One important note is that Nepal is theonly state reviewed which enshrines in itslegislated system the principle of non-dis-crimination on gender grounds, and noadditional limitation is placed upon thechoices of female potential migrants. This isan important model, which should be con-sidered and adopted elsewhere.

Additionally, the Nepali system adopts alimited form of joint liability between localagent and foreign employer. Whilst this isnot in a form which ensures that all liabili-ties are shared, it does allow the migrantto, at least, recover, as compensation, thecosts of migration where a placement isunsatisfactory.

Finally, a dedicated tribunal system is estab-lished to deal with complaints in which thestate appears as a party, thus taking a directinterest in the proceedings. Whilst thisstate interest could ultimately operate tothe disadvantage of migrants, should thestate fail to take action, proactive use of thetribunal system by the state could signifi-cantly enhance the safeguards available tomigrant workers in the event of unsatisfac-tory placements or exploitation.

Further research will be required to fullyassess the impact of the Nepali system indue course.

Sri LankaOverviewSri Lanka is a member of the IOM. Whilstit is not a party to the ILO conventions ithas acceded to the CRMW. Sri Lanka ranksconsiderably higher than its fellow SAARCmembers on the Human DevelopmentIndex, at 99/177.

Sri Lanka receives 1.1 percent of the totalworld level of remittances, representing 29percent of the country's foreign exchangeincome.

Sri Lanka was a relative latecomer to thetrend of mass migration from South Asia.Levels in 2007 are estimated to be at217,306. Whilst women make up a majori-ty of Sri Lanka's migrants, their proportionis falling, from 66 percent in 1997 to justabove 52 percent in 2005, as the result ofstate encouragement for men to migrate.

The majority of Sri Lanka's migrants are lit-erate but migrate to domestic service andunskilled labour. The largest destinationremains the Middle East and the Gulf, butthere has been an increase in numbersmigrating to other Asian destinations, par-ticularly Korea and the Maldives.

RegulationMigration to and from Sri Lanka is regulat-ed by the Immigrants and Emigrants Act1924. Regulation of emigration for workpurposes is set out in the Sri Lanka Bureauof Foreign Employment Act 1985, asamended by the Sri Lanka Bureau ofForeign Employment (Amendment) Act1994.

As its title suggests, the Act established aBureau of Foreign Employment (theBureau) to promote, regulate and manageforeign employment.108 The objects of theBureau are to promote employmentopportunities; regulate a system of private,licensed employment agencies; set stan-dards; maintain a databank of migrationinformation and welfare fund; and, in col-


laboration with agencies, provide orienta-tion and training to recruits.109 The Bureauhas power to enter into bi-lateral arrange-ments with other states110 and may appointforeign employment representatives, to beplaced in foreign missions in receivingcountries.111 The main duties of the Bureauare promotion of the welfare of emigrants,employment, settlement of disputes anddealing with complaints.112

The Act requires mandatory licensing of

foreign employment agencies.113 Specificstatutory power is given to the Bureauitself to operate as a foreign employmentagency.114

Licensed agents are required to be of goodrepute, to pay fees, guarantees and sureties,each currently standing at 10,000 rupees,and to take reasonable steps to ensurecompliance with employment contracts byforeign employers.115 Licences are issuedfor a 12-month period116 and may be can-


celled where a licence holder is convictedof an offence, provides false information, orthe Act or any regulations are contra-vened.117

The Act sets out a process for foreignrecruitment. Calls for labour must first beauthorised by the Bureau and agents mustsubmit details of the employer, nature ofemployment, and terms and conditionsoffered.118 Calls will be rejected if theterms offered are degrading, inhuman, orotherwise unsatisfactory.119 If approved, theterms and conditions will be certified andregistered.120

Payments by recruits are made to theBureau, via banking arrangements.121 The feewas originally set at 2,500 rupees, but wasreplaced in 1994 by a set of graduated feesdependent upon the type of work and skillsinvolved.122 If the agent subsequentlyarranges the placement, the Bureau thenreleases 70 percent of the fee to theagency and makes a further contribution of10 percent to the Welfare Fund. Agents arerequired to pay a 'cess', effectively a 5 per-cent levy on all commissions received, on amonthly basis.123

The Bureau is empowered to inspect, enterpremises and interrogate witnesses ininvestigating and monitoring agencies.124

The Act sets out penalties for operatingwithout a licence, making unauthorisedagreements and assisting emigration out-side the statutory framework,125 an offence.The penalties for these were increasedfrom 10-15,000 rupees to 20,000-100,000rupees in 1994.126 There is a separateoffence for overcharging, punishable by fineand imprisonment.127

Significantly, the Act did not criminalise indi-vidual migrants who migrated outside thestatutory framework. However, this posi-tion was reversed by the 1994 amend-ments and failure to comply with the pro-visions of the Act is now an offence pun-ishable with a fine and imprisonment for upto two years.128

The Bureau is entitled to receive com-

plaints from Sri Lankan citizens in relationto breaches of terms and conditions ofemployment contracts by foreign employ-ers, and against allegations that agents havefailed to take reasonable steps to ensureobservance. Agents found to have failed totake reasonable steps to ensure compli-ance by foreign employers may be orderedto pay financial compensation to themigrant concerned.129

The Act also establishes a databank ofmigrants and returnees130 (migrants arerequired to register prior to departure), awelfare fund,131 and an Association ofForeign Employment Agencies, membershipof which is compulsory.132

Additional ArrangementsFurther regulations and policy initiativeshave created a broader system of regula-tion by the state. Sri Lanka has establisheda system of pre-departure training and ori-entation for migrants, which, in some cases,is compulsory. The training covers specificindustries and work areas, cultural and legalawareness, safe migration issues, healthawareness, and has some gender-specificelements aimed specifically at femalemigrants. Training is delivered at 30 centresat district level and one large centre, cater-ing for up to 1,500 migrants at any onetime, in Colombo, over a 3-day period.

The Bureau has also developed a web por-tal carrying detailed information formigrants, which is now regarded as a modelfacility. It is intended to provide detailedguidance to migrants on the variousrequirements, processes, and trainingopportunities.

Sri Lanka has also adopted model contractsfor use and has attempted a number of bi-lateral arrangements, through the Bureauor using the Association of ForeignEmployment Agencies.133

CritiquesSri Lanka's system of regulation is consid-erably simpler than those adopted by otherstates surveyed, thus reducing the opportu-


In terms of themechanismintended to

regulate migrantlabour, the system

is extremelycomplex, requiringmultiple contacts

with state, privateagencies, andbanks. These

multiple contactsmaximise the

opportunity formanipulation and

corruption.

nities for overcharging and corruption.The state system also adheres more close-ly to a lifecycle of migration approach, withattention being paid to pre-departuremeasures and to returnees.

However, the Sri Lankan system displays anumber of familiar deficiencies. First, thesystem requires exit clearance for thosemigrating for work purposes. This, as withthe other systems reviewed, restricts free-dom of choice and movement for migrants.Furthermore, the current system, asamended, criminalises migrants who useinformal methods of migration. This is aregressive step, restricting individual free-doms.

The protective elements of the system, inregulating mass labour migration, are moreevident in the Sri Lankan model. At thesame time, there is little evidence of ade-quate regulation of the major force withinthe system, i.e the recruitment agents. Asis familiar, there is little available data inrelation to the application of the licensingrequirements and the policing of agentsonce licensed. However, it is perhapsindicative of the level of compliance that,whilst regulatory measures are in place inrelation to agencies such as the power toraid premises, it is estimated that some20,000 unlicensed and unregulated agen-cies operate in Sri Lanka. The proliferationof unlicensed agencies, and the likely lack ofpolicing even of those licensed, exposespotential and actual migrants to exploita-tion and overcharging.

Additionally, Sri Lanka's attitude to themigration opportunities of women givessome cause for concern. Sri Lanka has notrestricted migration of women in the wayother surveyed states have done in themanner described. However, there hasbeen growing disquiet that high levels offemale migration destabilise the social fab-ric of the Sri Lankan society. This led, in2007, to an announced ban on women withchildren under 5 from migrating for workpurposes. The ban, announced by theMinistry for Child Development andWomen's Empowerment, led to an outcry

and was withdrawn for reconsideration bythe Minster for Foreign EmploymentPromotion and Welfare a few days later. Itwas not put into effect. The proposedapproach, however, showed a worryingview of women's empowerment and theirrole in the society.

The Sri Lankan model has, however, incor-porated some positive approaches to sup-porting migrants and protecting their wel-fare whilst abroad. The framework adopt-ed is considerably simpler than those seenelsewhere in this survey and information ismore readily available to potentialmigrants. The use of model contracts anda web portal for the dissemination of infor-mation to migrants is progressive. Theavailability of a web-based system perhapsreflects the higher level of education exhib-ited by Sri Lankan migrants than elsewhere,allowing them easy access to written infor-mation through the use of technology.

The efforts made to secure the rights ofmigrants once placed abroad have beenmore proactive - although not broad rang-ing - than some of the other states sur-veyed. Some efforts have been at agreeingbilateral arrangements, either directlythrough government initiatives or indirect-ly through the Association of ForeignEmployment Agencies. Whilst someprogress has been made, initiatives haveoften been the subject of criticism byNGOs on the basis that, in reality, they havedone little to ensure tangible rights.

Finally, the legislation, whilst not adoptingthe concept of joint liability betweenrecruitment agents and foreign employers,does adopt some required standards to beapplied by agents, which, if breached, canresult in compensation being payable to themigrant. The standards require agents totake reasonable steps to ensure obser-vance of foreign employment contracts andwhilst this is less protective than joint lia-bility, it is a useful step beyond theapproaches of, for instance, India andPakistan.


The Philippines:A Model Approach

Whilst outside the scope ofthis study, the approach tomigration managementadopted by the Philippines

is often regarded as a model and a briefassessment is therefore necessary.

The Philippines has adopted a proactiveapproach to migration management. It hasin place a national migration policy, which isregarded as a model within the region.

It has also adopted a state-regulated sys-tem, after a period of state management,and proactively seeks bilateral, multilateral,and international agreements to facilitatemigration of its nationals.

Importantly, the Philippines have adopted aholistic approach,which is often referred toas the "life cycle of migration" approach.This approach involves regulation and man-agement of the migratory process pre-departure, in the receiving country, and onreturn. There is a detailed programme ofpre-departure orientation and training, aframework of minimum rights prior to aplacement being approved (including a min-imum wage), an extensive network ofOverseas Labour Officials in embassies(with a strong female representation), andsupport and services for reintegration onreturn.

The system is established under theImmigration Act 1940 and overseen by thePhilippines Overseas Employment Agency(POEA), established by a presidentialdecree in 1982. The current regulatoryregime is further outlined in the MigrantWorkers and Overseas Filipino Act 1995.The Act saw the end of state management

and instead put in place a state-regulatedscheme, which prohibits the direct recruit-ment of nationals by foreign employers andinstead favours a state-licensed and moni-tored system.

A migrant will not be approved for depar-ture without the terms of the placementconforming to a model contract and a min-imum wage being satisfied, along with themigrant having completed compulsory pre-departure orientation. Benchmarks are setin relation to various industries and by ref-erence to minimum standards in thePhilippines itself.

In terms of enforcement, until the 1995Act, the POEA had exclusive jurisdiction inrespect of the adjudication of disputesrelating to foreign labour contracts.However, this role transferred in 1996 tothe National Labour RelationsCommission, which now resolves and adju-dicates disputes relating to violations of ornon-compliance with overseas employ-ment contracts. Migrants may be assistedby Overseas Labour Officers in bringingcomplaints. Importantly, the Act establish-


Section 4OtherConsiderationsand Issues

es the concept of 'joint and solidarity' lia-bility for breaches as between a foreignemployer and a recruitment agent. In theevent of non-compliance by a foreignemployer, the migrant may successfullyseek redress against the agent involvedonce he/she has returned to thePhilippines. This concept of joint liability isan effective means by which a vulnerablemigrant worker may gain redress withoutreliance upon the legal system of thereceiving country. The system also allowsfor licences of agents to be suspended forabuse by the agent and for foreign employ-ers to be barred from hiring for abusesabroad.

The Philippines operates a welfare fund tobenefit migrants.

Whilst the Philippines' model does noteradicate restrictions on freedom of move-ment of potential migrants, it does establisha balanced system which monitors and pro-tects the rights of migrants placed abroad,and following their return, more effectivelythan the models adopted by the states sur-veyed. It also better equips them for migra-tion and reintegration upon return. Thesystem also adopts a gendered approach,seeking to support female migrants, partic-ularly in domestic settings.This is an impor-tant step, given women make up 60 percentof Filipino migration levels.

As can be seen, the approach adopted bythe Philippines can provide useful andimportant guidance to other states withinthe region in terms of effective and efficientmanagement of migration, the safeguardingof migrants' rights, and the protection ofthe position of women migrants.

The Impact of the GlobalEconomic DownturnAny consideration of the current contextof migration must take into account thelikely effects of the current world econom-ic downturn.

Migrant workers are particularly vulnerablein contracting markets, as they are general-

ly perceived to be the most disposable cat-egory of labour. The downturn is likely tolead to a significant reduction in the overalldemand for labour, particularly in the con-struction sector, which relies heavily onmigrant labour. The ILO has predicted 20million global job losses across the globalmarket place.134

In the past, countries have rapidly respond-ed to economic difficulties by reducingand/or expelling migrant labour. During theAsian economic crisis of the late 1990s,protectionist measures were introduced byvarious states as a response to publicresentment and adverse media coverage ofthe use of migrant labour. Thailand intro-duced an Unemployment Relief Scheme,with the express aim of replacing immi-grant labour with indigenous workers.135

Both Malaysia and Thailand instituted massdeportations of migrant workers in 1997.

The current downturn has already resultedin labour unrest and protectionist prac-tices. The UK has seen demonstrations bytrade unions against what was perceived tobe the favouring of the use of foreign asopposed to indigenous labour. In SoutheastAsia, Malaysia has adopted a 'Locals First'policy, seeking to limit and replace foreignmigrant workers.136 It is likely that otherstates will follow, taking steps to restrict orprohibit migrant labour as the downturncontinues.

It will be important for states to resist pop-ularist responses to the use of migrantlabour. As was noted above, migrants ordi-narily fill gaps in the labour marker ratherthan displacing indigenous workers. Statesshould therefore adopt realistic responsesto the contraction of the job market,rather than responding to media and publicpressure that frequently fails to note thenuances of the labour markets and the real-ities of recruitment.


It will beimportant forstates to resistpopularistresponses to theuse of migrantlabour. As wasnoted above,migrants ordinarily fill gapsin the labourmarker ratherthan displacing indigenousworkers.

Overview

The current systems operatingacross the five SAARC statesexamined adopt approacheswhich seek to exploit labour

migration in order to create both internalstability, through the reduction of unem-

ployment, and to increase foreign exchangerevenue through remittances. As each ofthe states viewed receives significant remit-tances, and each, with the exception ofIndia, is heavily dependent upon remittedincome, migration forms an important ele-ment of economic stability and policy.


Section 5Conclusions

However, with the exception of Sri Lanka,few states appear to address the issue ofmigration in any systematic manner interms of state planning.

Each has however adopted a policy of seek-ing to control migration by means of exitcontrols. Whilst the explicitly stated aim ofthese exit control policies is to provideprotection to migrants, as can be seen, lit-tle real protection is afforded. The varioussystems adopted, whether state-regulatedor state-controlled, aim to put in place reg-ulated agencies, applying approved stan-dards in terms of the selection, placement,and terms upon which foreign employmentis provided. Whilst various of the statesreviewed have legislated for differingdegrees of state control and supervision,each has put in place a system which is inreality, revenue generating.

These systems, using the guise of protec-tion, have created significant bureaucraticapparatus, which in turn produce opportu-nities for exclusion, exploitation, and abuse.Whilst poverty and restricted economicopportunities are major drivers of migra-tion, the current predominant systems ofstate regulation or management, generatefee structures which exclude the poorestsections of the society, restricting migrationopportunities of the most vulnerable toaffect their own life choices.

This exclusion, taken together with ineffec-tive and inefficient support for returnees interms of job opportunities and investmentof remitted incomes may, as Waddingtonsuggests,137 lead to a widening rather than anarrowing of inequality. A basic reconfigu-ration of the current systems of managingmigration in the various states concernedis necessary to ensure a maximised benefitto migrants, their families and the commu-nity as a whole. Such an approach wouldrequire a rebalancing of regulation andcompetition-driven considerations. Theultimate aim must be to provide maximumopportunities to migrants, at low cost,whilst maximising rights protection.

A Reconfigured ApproachThis reconfiguration requires action bothregionally and within individual states.

Each state has in place a system, which cur-rently, to varying degrees, restricts the free-dom of movement of its citizens by impos-ing exit controls.The right of individuals tomove freely is enshrined in a multiplicity ofhuman rights instruments. The right tomove freely from one's own state to takeup work elsewhere is explicitly recognisedby the CRMW. The imposition of exit con-trols, in the guise of protection, providessignificant restrictions on the rights of citi-zens. As Ronald Skeldon has noted:

"An underlying contradiction existsbetween any attempt to control the vol-ume and direction of migration, and thebasic human right of freedom of move-ment."138

Regional ActionAny reconfiguration of movement andmigration within South Asia will requireregional action. The SAARC, to which eachof the countries reviewed belong, has inplace an ambitious programme for trade,customs and currency unions (current pro-posals aim towards a South Asian freetrade area by 2010, customs union by 2015and economic union by 2020).139 However,despite the importance of migration to itsmembers, to date, the SAARC has put for-ward no regional policy on migration(although a number of its members con-tribute to the IOM, the Colombo Processetc.).

There is currently limited documentedmigration between the SAARC states, thecurrent dominant patterns remaining asmigration to the Gulf and the Middle East.This, however, ignores the traditional pat-terns of migration, which continue to existand are largely undocumented, throughwhich migrants move within South Asiaitself.

As has been noted above, open borderarrangements currently exist between


India, Nepal and Bhutan, and have been suc-cessful in allowing free movement ofmigrants for work without creating difficul-ties for the states concerned.

These arrangements accommodate tradi-tional family and community networks, sea-sonal and frontier work. These patternsexist elsewhere in South Asia with signifi-cant levels of undocumented migrationbetween for instance India, Bangladesh andPakistan,Afghanistan and Burma, particular-ly in areas with porous borders. The failureof states to accommodate formally thesemigratory patterns leaves undocumentedmigrants in a disadvantageous and precari-ous position, leaving them open toexploitation and abuse by employers andfunctionaries of the state.

The South Asia Alliance for PovertyEradication (SAAPE) called for a visa freeSouth Asia, at a meeting as part of theColombo Process in July 2008.

The removal of visa restrictions within theSAARC would significantly advantagethose, particularly the poorest in society,who wished to migrate between SouthAsian states. The aim of the SAARC statesshould be the maximisation of freedom ofmovement within the SAARC area by citi-zens of member states. States shouldaddress the idea of free and open bordersin order to maximise the life choices andeconomic opportunities of citizens. TheSAARC should be pressed to develop clearpolicies so as to incorporate this aim with-in its existing timetable of trade integrationwithin the region.

Individual StateResponsibilityWhilst the issue of the removal of visarestrictions within the SAARC may beaddressed regionally, the vast majority ofmigration from the states reviewedremains towards the Middle East and theGulf. Methods of managing this migrationwithout restricting the freedom of move-ment of individual citizens would require amore structured approach within each

individual state.

Skeldon suggests an approach by which:

"Governments should examine how immi-gration/emigration policy should be incor-porated into existing bureaucratic struc-tures in a manner which would avoid dupli-cation and provide a fast, efficient andtransparent service."140

The removal of all restrictions on themigratory process would be likely to leadto further exploitation of migrants andpotential migrants. Individual migrants, savefor skilled and professional workers, wouldbe unlikely to have sufficient informationand the ability to avail themselves of migra-tory opportunities, and the receiving statesmay continue to favour the use of agents toidentify, screen and place potential migrantworkers.

A number of measures could be consid-ered in order to facilitate a suitablyempowering but sufficiently protectiveapproach.

The first consideration would be theremoval of exit clearance requirements.This change would need to be accompa-nied by the removal of sanctions, currentlycriminal in several states, for migrants mov-ing outside the regulatory schemes. Thisapproach would empower individualmigrants to avail themselves of their rightto freedom of movement. It would be pos-sible for states within South Asia to followthe model set out by many western statesthat allows free movement to citizens sub-ject simply to the entry requirements ofthe receiving states. This western model,however, has developed in states in whichmigration has generally been of skilled andprofessional workers filling privatelyarranged vacancies in other states.Modifications to the model would need tobe developed to accommodate the specificcharacteristics of mass and largely unskilledmigration from the South Asians states.

These modifications would need to focuson two central issues: protection for


The removal ofvisa restrictions

within the SAARCwould significantlyadvantage those,particularly the

poorest insociety, who

wished to migratebetween SouthAsian states.

workers in terms of the use of recruitmentagencies; and protections in terms of thestandards, terms, conditions, and legalredress available to migrants once abroad.

Protection and RecruitmentProcessesThe first of these issues, the regulation ofagencies, requires a redrawing of the cur-rent regulatory regimes. Waddington com-ments that state monopoly models haverarely been successful in providing ade-quate opportunities and protections tomigrants. Given the scale of migration, it isin any event unlikely that the task ofrecruiting and placing migrants could besuccessfully undertaken by the state with-out private sector assistance. Given theexisting networks of private licensedagents across the region, it is likely thatthose would remain the most effectivestructure for the continued management ofmigration.

It is, however, clear that the existing struc-tures for licensing, monitoring, and regula-tion are inadequate. The relatively low lev-els of licence fees, the sometimes lengthyterms of the licences once granted, and thelow level of scrutiny and monitoring leavespotential migrants in a vulnerable position.

A significant increase in licence fee hasbeen seen to be effective in the Sri Lankancontext. Shortened periods of licence anda reinforced system of monitoring of per-formance would be likely to reduce unsat-isfactory performance and corruption. It isclear that, for instance in Bangladesh, thebasing of agents in Dhaka and the informalsystem of sub-agencies existing elsewherein the country has remained unchecked bythe existing regulatory regime. India'srequirement for central Government'sapproval for criminal prosecutions is anobvious impediment to effective regulation.

The reality of the current situation demon-strates that the multiplicity of contactswith differing agencies of the state and inthe private sector increases the opportuni-ty for corruption and manipulation of the

system to the disadvantage of the migrant.In Pakistan's current system, with contactsinvolving agents, banks and theProtectorate, the need for payments forstamping, fees, expenses of the agent,Government charges along with therequirement for the issuance of multiplecertificates and registrations poses numer-ous possibilities for misuse and manipula-tions, the existence of which are supportedanecdotally.

It should also be noted that data and sta-tistics on investigations, suspensions orcancellations of licences and prosecutionsfor breaches by agents and other officialsare not readily available.

A stringently defined and monitored sys-tem of licensing, with adequately highlicence fee and guarantees, and an enforcedsystem of penalties for breaches, wouldassist in protecting migrants from exploita-tion by limiting the scope for unscrupulousagents and practices that develop andremain undetected. A system which wassimplified so as to minimise contacts withstate and private agencies would reduceopportunities for corruption. Such simpli-fied systems could be operated withinstate-regulated or state-managed systemswith appropriate safeguards in place. Themodel of the Philippines, following the 'lifecycle' approach (whilst disregarding theelement of exit clearance) would be a sen-sible starting point, ensuring an integratedand holistic system.

The Filipino model shows clear evidence ofthe advantages of a central bureaucracy(when properly managed and free fromcorruption opportunities), whilst buildingin appropriate flexibility. A more stream-lined approach, reducing contacts withagencies and minimising opportunities forcorruption would in turn lower the costsof migration, opening migration options tosectors of the community currentlyexcluded.


Protections forMigrants AbroadA basic starting point in a sending state'sability to regulate and monitor the terms ofemployment and rights available to its citi-zens abroad are the constraints set out bythe international law. State sovereigntyprevents any direct right of influence oraction by the sending state in the affairs ofthe receiving state. At the same time, thereare a number of clear avenues open tomore proactive states in order to encour-age adequate protection of their citizensabroad and migrants within their own bor-ders. However, in the past, states havefocussed instead on competition withother states, choosing to minimise protec-tion to ensure that migrants are mar-ketable. This can result in a regrettabledownward spiral of standards under pres-sure of the threat of losing market share toother, less protective states.

What is required is a shift in state thinking,with the aim of protecting citizens' rights.Again, a regional approach, through forinstance the setting of minimum standardsinvolving SAARC institutions, could allayfears of undercutting and loss of marketshare. However, in the absence of region-ally agreed action, individual states must actto protect the interests and rights of theirnationals. Steps taken should include therange of options explored below compris-ing: accession to international labour stan-dards and conventions protecting the inter-ests of migrants; the securing of bilateraltreaties, scrutiny of labour calls againsttransparent and fixed standards; the settingof minimum wage levels; the enforcementof penalties against agents for breaches byforeign employers in respect of whomlabour supply was agreed; blacklisting offoreign employers who persist in violationof existing rules; use of welfare funds tocompensate victims of abuse; and encour-aging the involvement of trade unions instandard setting and monitoring.

AccessionIt is vital for securing of the rights ofmigrants that both sending and receiving

states ratify and adhere to the standardsset out in the various ILO conventions andthe CRMW along with more general rightsset out in the general UN framework ofhuman rights. General follow up of ratifi-cation has been poor both across SouthAsia and in the major receiving areas of theGulf and the Middle East. Currently thereis little pressure upon the main receivingstates to ratify and such pressure cannot beexerted by states which have not them-selves ratified. It would be an importantstep towards more widespread ratificationif the SAARC states were to coordinateand follow up the process. This would thenallow, singly or as a bloc, to exert increasedpressure on the main receiving states toratify and ensure minimum standards andequality. Given the current heavy relianceacross the Gulf and the Middle East uponmigrant labour (even in the face of variousmoves by individual states to increase lev-els of indigenous labour), pressure could beexerted for improved standards if group, asopposed to competitive, action were to betaken.

Individual states and the SAARC as a groupshould be called upon to ratify the variousconventions discussed.

Bilateral TreatiesIn the absence of any regional approach, theuse of bilateral treaties will be vital insecuring the interests of migrating workers.The use of bilateral treaties has not, todate, been viewed as generally successful,141

with states being reluctant to enter intoarrangements which would make theirnationals appear uncompetitive as opposedto those of other states. Several bilateraltreaties (and memoranda of understanding)reached are regarded as restrictive and dis-advantageous to the rights of migrantworkers. States must take a more bal-anced, long-term, and rights-basedapproach.

The guarantee of minimum labour rights,access to the legal systems of the receivingstate and protections from arbitrary andunequal treatment would be a useful first


In the absence ofany regional

approach, the useof bilateral

treaties will bevital in securingthe interests of

migratingworkers.

step in any such approach. The pattern,seen in several of the major receivingstates, of excluding non-nationals fromlabour rights and the court systems is nota practice which should be permitted tocontinue. Sending states should, preferablyin a coordinated approach with other send-ing states, prioritise the rights of theirnationals over the short-term economicgains of an increased share of migrantlabour contracts and remittances. Such anapproach would, of course, be more effec-tive if taken regionally, through organisa-tions such as the SAARC, in order to min-imise the risk of undercutting by otherstates.

Scrutiny of Labour CallsWhilst the systems described aboveinvolve an examination and approval of var-ious labour calls from foreign employers,there is little evidence that these are effec-tive, nor is it clear against what standardssuch calls are generally to be judged. Eachsending state should have in place a clear,transparent and enforced framework ofrequirements for approval. Published stan-dards in relation to basic terms and condi-tions, which are regularly reviewed andupdated, would be a positive step forward.This would allow states to have in place aframework for foreign labour agreementswhich is known and applied by state func-tionaries, and would simplify the system ofapproval. The setting of basic minimumstandards in relation to pay (discussed fur-ther below), hours, breaks, accommoda-tion, food arrangements, travel and repatri-ation costs would streamline processes,add transparency and limit the discretion ofand potential for abuse by state functionar-ies. The development of model policies andcontracts, utilised in the Philippines and SriLanka, would be a useful way forward.

Minimum Wage SettingThe setting of minimum wage levels eithergenerally or for particular types of workundertaken by migrant workers would be asignificant step forward in benefitingmigrant workers. Nepal's governing legisla-tion already allows for this step, unlike that

of other South Asian states examined. Thesetting of minimum wage levels for migrantworkers would also allow for increasedpressure on states to set similar minimumlevels for workers within the state, thusbenefiting workers more widely.

Penalties Imposed on Agentsfor Breaches by ForeignEmployersOne important step in redressing themigrant worker's relative vulnerability inthe framework of international law is toshift the risk of breaches of employmentcontracts and labour standards from theworker (who may find that he/she has norights of enforcement in the receivingcountry) to the sending country, and in par-ticular to the agent arranging the foreignplacement. Risk allocation within legal sys-tems is a normal device, which allows, invarious situations, for the wrongdoing of aperson to be compensated by another.Given the lucrative nature of recruitmentagency contracts and the relative financialpositions of the migrants and agents itwould be equitable to allocate the risk ofbreach and compensation payments to theagent as opposed to the migrant.

The Filipino system already provides forthis possibility in the form of joint liabilityas between agents and foreign employers invarious circumstances. Such a mechanismwould encourage accountability and wouldbe likely to reduce abuses as foreignemployers would have little incentive tosecure the repeat services of agents whohad been compelled to make redress forabuses by the employer, or indeed of otheragents who became aware of past malprac-tice.

BlacklistingSeveral of the systems examined allow fora system of blacklisting of foreign employ-ers who have been found to have abusedthe employment contracts of migrantworkers.

There is little documented evidence of theuse of such blacklists and thus the effec-


tiveness of current arrangements is difficultto assess. However, a single, published andeasily accessible source of complaints andblacklisted employers, perhaps available in acombination of paper form and web-basedmedium would advantage both agents andmigrants. The model of Sri Lanka's web-based information service could be drawnupon and expanded to cover this function.

The Use of Welfare FundsThe use of Welfare Funds, although usefulas a concept, has not always ensured thatfunds are made available to migrants ortheir families.142 In the absence of otherredress for abused migrant workers (whohave been unable to recover as against for-eign employers or agents), Welfare Fundsshould be required to make provision forcompensation. This would be a direct andrelevant use of funds, collected frommigrating workers prior to departure, andwould provide a readily accessible sourceof compensatory relief for those with noother form of economic redress.

Wider Involvement of CivilSociety Groups and TradeUnionsCivil society bodies and trade union groupsin particular can function as an importantmonitor of migrant workers' rights andprotections, independent of state mecha-nisms. Currently however, a number ofpractical and organisational difficulties ham-per this process.

Trade unions have traditionally demon-strated suspicion of migrant workers,accepting the now discredited views thatmigrant labour displaces indigenous labourand suppresses wage levels.Additionally, theactivities of trade unions have been heavilysuppressed in many of the major receivingcountries. However, more recently, tradeunions have sought a more active and inte-grated approach to the issue of migrantlabour.

Unions have acknowledged a number ofsignificant issues in relation to migrantlabour, including the difficulty of assisting or

representing members abroad, fear ofattracting attention on a political level, lackof resources and the restrictive policiesexisting in major receiving states.However, the ICFTU-APRO Social Charterfor Democratic Development, set out in1994, made recommendations representinga changing approach. The Charter urgesunions to pay attention to migrants, engagein tripartite consultation in relation to therights of migrants, to affiliate to various ILOorganisations relating to migrants and topress for ratification of the various migrantlabour conventions. Whilst the South Asianeconomic crisis of the 1990s caused a set-back in trade union attitudes to foreignmigrant labour, the unions recommittedthemselves to furthering the interests ofmigrant workers at the ILO Asia PacificRegional Trade Symposium on MigrantWorkers, in December 1999.143

Trade unions and wider civil society groupshave an important part to play in securingand ensuring the rights of migrant workersabroad, with the obvious starting point ofensuring strong labour networks in theirhome states, which can then be interna-tionalised through networks and linkageswith organisations in receiving states.

The Position of WomenThe position of women requires particularconsideration. Women make up in excessof 50 percent of the world's population.The background of discrimination faced bywomen is well documented elsewhere andthe need to recognise women's rights ashuman rights is reflected in the variousequality provisions of the UN frameworkof Conventions discussed above, and theCEDAW in particular.

Females are affected by migration in a num-ber of ways, as migrants; and the depend-ents of migrants; as those left behind bymigrants; and as a group particularly vul-nerable to undocumented migration andtrafficking. Whilst a detailed analysis of thedifficulties faced by women in particular isbeyond the scope of this paper, mentionshould be made of the strategies currently


Trade unions andwider civil society

groups have animportant part toplay in securing

and ensuring therights of migrantworkers abroad.

adopted by the states reviewed and theneed for reform.

As has been seen, a number of the statesreviewed have and continue to restrict therights of female potential migrants, by ageand/or by job category. Only Nepalincludes in its legislative framework a non-discrimination requirement in recruitment.Restrictions on female migration have gen-erally been justified by states on two bases:protection from exploitation and the needto protect social stability and family life.The latter concept is based around stereo-typical ideas of female roles, as caregiversand should not be used to justify therestrictions on women's life choices.

The risk of exploitation is real. Women areat increased risk when they work, forinstance, in isolated domestic settings andthey can become subject of abuses of aphysical and sexual nature whilst workingabroad. However, it is naive of states tobase policy on ideas of protection whichexclude women from migration choices.Given that one of the major drivers ofmigration is poverty, and that women oftencarry the double burden of poverty and

care, many choose or are forced to consid-er work options outside their own state.Where legal migration is prohibited,women are forced to utilise undocumentedmethods of migration, and thus the stateincreases their risk of exploitation andexposure to trafficking.

A rights-based approach would insteadacknowledge the right of women tomigrate, whilst providing, as part of thestate's general protections, specific safe-guards for women to address particularvulnerabilities. Education, publicity and pre-departure briefings would play an impor-tant role in managing vulnerability. Drawingattention to the risks of trafficking and sexwork would be valuable, as would alertingwomen to their rights should they havetravel documents confiscated or sufferabuse at the hands of employers.The pro-vision of female staff, an important accom-modation for women who may feel cultur-al constraints in approaching male staff, inconsular offices/as labour attaches aremeasures already implemented to someextent by states with high levels of domes-tic service migrants.


The following summary of recom-mendations is made in relation tothe states surveyed. Statesshould:

Adopt visa-free travel arrange-ments within SAARC.The adoption of visa free travel would facil-itate freedom of choice and movement forcitizens in accordance with the require-ments of various international treaties. Thecurrent failure of the SAARC states tofacilitate visa-free travel restricts space forrecognition of the rights of individual citi-zens, and the traditional migratory tiesbetween the SAARC states.Visa-free travelacross the SAARC would better allow theSAARC citizens to avail themselves of theeconomic opportunities arising frommigration, particularly at a time of globaleconomic turbulence.

Remove limitations on migrants'freedom of movement in the form ofexit controls.The imposition of exit controls forms a sig-nificant barrier to freedom of movement,impacting in many states on those less ableto negotiate the complex proceduresinvolved (as many states exempt profes-sional/skilled migrants or define clearancerequirements in terms of unskilled labour).The levels of manipulation and corruptioninvolved in the administration are driverstowards undocumented/irregular migra-tion, which in turn attracts criminal penal-ties. A reconfigured approach would pro-vide for individual autonomy whilst retain-ing regulation of mass migration by licens-ing of agents and the proper policing of reg-ulatory systems.

Have in place regulated andminimum cost agency-based systems

handling large-scale calls for migra-tion, increasing potential access bythe poorest sections of society.Mass, short-term, migration, to particularregions is likely to continue as a pattern ofmigration for the foreseeable future (evenallowing for changes in demand due to theeconomic downturn). Whilst restrictionsupon individuals should be lifted, the man-agement of mass placements will need tocontinue to be regulated to preventexploitation and abuse of migrants. It islikely that use of the prevalent existing sys-tems of licensing agents, would continue. Itwill, however, be necessary to ensure thatsuch systems provide low-cost access, inorder to open the possibility of migration


Section 6Recommendations

with its attendant economic benefits, to thepoorer sections of the society, who arecurrently excluded. Streamlining systems,limiting fees and costs, and properly polic-ing systems to prevent overcharging/cor-ruption will be necessary parts of wideningmigratory opportunities to the poor.

Increase the level of licence feespayable by licensed agents.Evidence has demonstrated that low levelsof licensing fees and guarantees haveallowed potentially unscrupulous and/orunder-resourced agents to function in themarket, widening opportunities for theexploitation of migrants. Raising fees andguarantee levels is likely to move suchagents out of the market, increasing thereliability and trustworthiness of thosewho remain. Higher fee levels are likely torestrict the market to those agents withsufficient experience and contacts toensure that successful placements aremade.

Effectively regulate the market,eradicate unlicensed agents andenforce penalties for overchargingand other malpractice.Current levels of regulation, in terms of ini-tial licensing, license renewals and policingof services, particularly in relation to fees,are clearly inadequate. The levels of avail-able data on the licensing process andpolicing are minimal/non-existent.Transparency in the licensing system isrequired. The removal of limitations onprosecution (as is the case in India) and theeffective prosecution of agents abusing theregulatory system are also required. Theexample of Bangladesh is the mostextreme, requiring the regulation orremoval of the current, unregulated, dalalsystem.

Simplify procedures in order tominimise opportunities for abuseand corruption.The systems of regulation across the vari-ous states surveyed are complex andrequire multiple contacts with agents,banks, bureaucrats and officials. These mul-

tiple contacts add complexity to systemsaiming, theoretically, to protect those whoare likely to be low-skilled and economical-ly vulnerable. A simplified system, morenavigable by those without higher levels ofeducation, and minimising contacts withmultiple agencies, will reduce opportunitiesfor abuse and empower migrants to utilisemechanisms without additional exposureto abuse and risk.

Negotiate regional and bilateralarrangements, safeguarding labourrights of migrants and ensuringaccess to legal redress for victims ofabuse.Whilst current attempts and bilateralagreements have proved problematic insafeguarding the position of migrants,instead being limited by competitive driversand serving to restrict the personal rightsof migrants, change in the existing order ispossible. Bilateral arrangements have thepotential to provide genuine advances inthe protection of migrants, by avoiding thelimitations of international law and issues ofstate sovereignty. In order to avoid statereluctance to agree to better standards andprotections (on the basis of the fear thatthe state's pool of labour will be seen asuncompetitive), a regional approach couldbe adopted, ensuring consistency andincreasing the bargaining position of theSAARC states in discussions with themajor labour-receiving states. Major receiv-ing states have been reluctant to engage indiscussions on labour standards and accessto basic labour rights. They are, however,heavily dependent upon migrant labour, themajority of which is provided by the statesreviewed.Acting collectively would increasesignificantly the possibility for agreements,which would genuinely benefit migrants interms of rights and conditions.

Adopt the principle of joint lia-bility as between agents and foreignemployers in their domestic legalsystems.The concept of joint liability as betweenlocal recruitment agents and foreignemployers provides a significant safeguardin relation to migrants' rights whilst abroad.


The potential for abuse of terms and con-ditions is considerable and the failure toadhere to terms, in relation to pay, accom-modation, food etc. is widespread. In themajor labour-importing states, the exclu-sion of foreign migrant labour from labourrights and the judicial systems is frequent.Migrants therefore have little or no redressin the event of dispute or contractualbreach. Even where access to rights can besecured, the transient nature of migrantplacements and the cost involved will limitaccess to judicial systems in practice. Theprotection of such rights in the sendingstate represents a major advance in provid-ing access to redress. Liability on the partof agents would represent a sensible place-ment of risk and would be likely to increasestandards, with agents being unwilling toaccept calls for labour from employers witha past history of malpractice or insufficientevidence of funds/arrangements/availabilityof work.

Establish education, training andinformation networks, based on theFilipino and the Sri Lankan models.Increased information and training willserve to protect migrants by empoweringthem with the knowledge and the tools tobetter negotiate life once placed abroad.Such networks also benefit the sendingstate, by increasing the potential pool ofmigrant labour beyond those with currentaccess to information and will rendermigrants more competitive in the worldmarket. Information increases transparen-cy and accountability. The use of a web-based model, such as that seen in Sri Lanka,would be beneficial and provide wide scopefor access. Education and training initia-tives, monitored by the state, would pro-vide standardised and relevant skills, whichwould equip migrants for life abroad andbenefit them on their return.

End the discriminatory exclusionof women from migration.The various states surveyed have shownmixed responses to the issue of femalemigration. It is important for each state torecognise the right to migrate is equallyapplicable to female citizens and that

restrictions on female migration are dis-criminatory. There is need to provide pro-tection for women in the migrationprocess, given their particular vulnerabilityto exploitation and trafficking. Such pro-tection is best achieved through regulatoryregimes, education and training, as opposedto exclusion from migration rights whichlimits female choice and drives womentowards undocumented migration.

Adopt a principle of non-dis-crimination in labour recruitmentfor migration.In order to further the rights of womenwithin the sending state and upon migra-tion, states should adopt the model ofNepal and enshrine in legal provision aprinciple of equality and non-discriminationin order to provide equality of choice andtreatment in the migration process.

Encourage trade unions and civilsociety groups to become involved inthe monitoring and mobilisation ofmigrant labour.In addition to state monitoring of migrationand rights, it is important that states recog-nise the role and value of civil societygroups, particularly trade unions. Tradeunions are uniquely equipped to recogniseand respond to labour issues.The strength-ening of trade unions in sending countriesand facilitating their ability to build linksand operate internationally will be animportant step in improving and safeguard-ing the rights of migrants. Trade unionismhas been traditionally prohibited or tightlycircumscribed in major labour receivingstates. Efforts should be made bilaterallyand regionally to increase the ability oflabour to organise in receiving states interms of both indigenous and migrantlabour.

Ratify the ILO labour conven-tions and the CRMW.It is vital that all states take adequate stepsto implement international labour stan-dards for both indigenous and migrantworkers.


Ratification of the various internationaltreaties is an essential step in so doing.Whilst acceptance of obligations on paperis insufficient, the failure of a majority of theSAARC states to accept even minimuminternational obligations is unsatisfactory.Ratification is a required step in protectingthe rights of workers within sending states,providing a benchmark for proposed termsand conditions for those migrating, and forleverage to apply labour standards inreceiving states.

Adopt a "life-cycle of migration"policy.It is vital for states to recognise the impor-tance of a holistic approach to internation-

al migration if their citizens are to fully ben-efit from the potential advantages of migra-tion. This requires an approach which max-imises the choices of migrants, empowersthem through information and training,provides maximum protection for theirrights both in the sending and the receivingstate, and supports them upon return.Ensuring that there is in place a nationalplan for migration, a properly regulated sys-tem of control of those operating themigration channels and the opportunity ofmigrants and returnees to invest theirremittances and skills in their home state isan important component of labour policyin the SAARC states, but remains onewhich is largely overlooked at present.


1. Details of individual signature and ratification by each state of the various ILO and UN conven-tions are specified below.2. Reported in the Dawn Newspaper, Pakistan, January 22, 2008.3. "International Migration and Human Rights Challenges and Opportunities on the Threshold ofthe Anniversary of the Universal Declaration of Human Rights", October 2008.4. UNFPA, 2004.5. See Weiner, Myon "Rejected Peoples and Unwanted Migrants in South Asia," Economic andPolitical Weekly, August 21, 1993.6.World Migration Report 2001.7.World Migration Report 2005.8. For a detailed discussion of the history of migratory patterns in South Asia, see Md. ShahidulHaque. "Migration Trends and Patterns in South Asia and Management Approaches and Initiatives,"International Organisation for Migration.9.As at 2002, see Rajan S Irundaya, "Dynamics of International Migration from India: Its Economicand Social Implications," ICFAI Journal of Employment Law, 2004,Volume II No2, pgs 25-45.10. Gazdar, Haris. "A review of Migration Issues in Pakistan in Migration and Development: ProPoor Policy Choices," Ed.Tasneem Siddiqui, University Press, Dhaka 2005.11. INSTRAW: International Organisation for Migration "Temporary Labour Migration of Women:Case Study of Bangladesh and Sri Lanka," 200112. Migration to India reduced from 89% of total migration to 68% as at 2001. See Haque at 8above.13. For a broader discussion of various push and pull factors see "Migrant Workers and the LabourMarket: Review of the LSC Research on Labour Market Participation, Skills and Skills Provision forMigrant Workers", January 2007; Haque at 8 above.14.World Bank 2002.15.World Bank figures 2003 available at www//Inweb18.worldbank.org.sar.sa.nsf16.World Bank Report.17. Glover et al. "Migration:An Economic and Social Analysis," RDS Occasional Paper 67, London,Home Office, 2001; Gott and Johnstone "The Migrant Population I the UK: Fiscal Effects," RDSOccasional Paper 77, London. Home Office, 2002.18. Nyberg Srenson et al. "The Migration-Development Nexus: Evidence and Policy Options,"Centre for Development Research Studies, Copenhagen CDR, 2002.19. De Haan and Rogaly, "Introduction: Migrant Workers and Their Role in Rural Change," Journalof Development Studies, 2002 38(5).20. Murphy R, How Migrant Labour is Changing Rural China, Cambridge, Cambridge University Press,2002.21. Waddington, Clare. "Livelihood Outcomes of Migration for Poor People," Sussex Centre forMigration Research, December 2003.22. Khan et al. "Breaking and Making the Chain: Livelihoods of the Female-headed Extreme PoorHouseholds," Research Paper 7, the Livelihoods of the Extreme Poor Study IMEC/PROSHIRA, 200323. See 3 above.24.Abella M. "Sending Workers Abroad," ILO Geneva, 199725. See IOM estimates26.Wickramesekera P. "Asian Labour Migration: Issues and Challenges in an Era of Globalisation,"International Migration, Paper 57, 2002, International Migration Programme, Geneva. ILO.27. Ravi Srivastava and SK Sasikumar. "Migration and the Poor in India: An Overview of RecentTrends, issues and Policies," 2005.28.As amended by the Emigration (Amendment) Rules 2004.


Notes

29. Section 22 Emigration Act 1983.30. Section 3 supra.31. Section 4 supra.32. Sections 10 and 16 supra.33. Section 11 supra.34. Section 12 supra.35. Section 9 supra.36. Section 17 supra.37. Section 18 supra.38. Section 22(2) supra.39. Section 22(3) supra.40. Section 22(5) supra.41. Section 24(1)(a) supra.42. Section 24(1) supra.43. Section 27 supra.44. Section 41 supra.45. Rules 7 and 8, Emigration Rules 1983 as amended.46. Rule 25 supra.47. Rule 15(2) supra.48. For a general discussion see Srivastava and Sasikumar at 27 above.49. See Waddington Clare "A synthesis of ILO and other literature on policies seeking to managerecruitment and protection of migrants and facilitate remittances and their investment," present-ed at the Regional Conference on Migration, Development and Pro-Poor Policy Choices in Asia,Dhaka, Bangladesh, June 22-24, 2003.50.Available at NewKerala.com.51. Nair, PG. Asian Migration to the Arab World: Experience of the Returning Migrants, Japan, UnitedNations Press, 1991.52. Pakistan Institute of Legislative Development and Transparency, Briefing Paper 34.53. See IOM figures on remittances.54. Section 4 Emigration Act 1979 as amended.55. Section 4A supra.56. Section 5 supra.57. Section 7 supra.58. Section 8 supra.59. Section 12 supra.60. Section 20 supra.61. Section 17 supra.62. Sections 18 and 22 supra.63. Rule 22A.64. Rule 23,65. Rule 26 supra.66. Rule 26(2) supra.67. Rule 25 supra.68. Rule 25(2)(xi) supra.69. Rule 27 supra.70. Ercelan, Aly, "Freezing or Dissolving Poverty in South Asia: The Significance of InternationalEmigration and Remittances in Pakistan," PILER, January 2008.71. IOM figures.72. Mohammad Jalal Uddin Sikder, "Bangladesh: Refugee and Migratory Movements Research Unit,"Asian and Pacific Migration Journal,Volume 17.73. For a detailed discussion, see Tasneem Siddiqui "Decent Work and International LabourMigration From Bangladesh," presented at the National Policy Dialogue 27-28 April 2004.74. See Siddiqui above.75.Announcement by the Government of Bangladesh 2006.76. See Siddiqui above.77. See Sikder above.78. Section 7(3)(a) Emigration Ordinance 1982.79. Section 7(3)(b) supra.


80. Section 10 supra.81. Section 14 supra.82. Section 24 supra.83. Section 23 supra.84. See Siddiqui above.85. See Siddiqui above.86. See Siddiqui above at page 12.87. See Siddiqui above.88. Chapter VIII of the Act.89. Section 3 Foreign Employment Act 200790. Section 7 supra.91. Section 8 supra.92. Chapter VI supra.93. Rule 3 Foreign Employment Regulations.94. Section 17 supra.95. Rule 16 supra.96. Section 17 supra.97. Section 21 supra.98. Section 72.99. Section 28 supra100. Section 11 supra.101. Section 13 supra.102. Section 26 supra.103. Section 32 supra.104. Section 33 supra.105. Section 36 supra.106. Sections 43 to 53 supra.107. Chapter XI of the Act.108. Section 3 Bureau of Foreign Employment Act 1985.109. Section 10 supra.110. Section 20 supra.111. Section 21 supra.112. Section 22 supra.113. Section 24 supra.114. Section 25 supra.115. Sections 26 - 28 supra.116. Section 29 supra.117. Section 31 supra.118. Section 37 supra.119. Sections 39 and 40 supra.120. Section 40 supra.121. Section 51 supra.122. Section 51 as amended by section 4 of the Bureau of Foreign Employment (Amendment) Act(The Amendment Act).123. Section 52 supra.124. Section 60 supra.125. Section 62 supra.126. Section 7 of the Amendment Act supra.127. Section 64 supra.128. Section 67A supra.129. Section 44 supra.130. Section 53 supra.131. Section 45 supra.132. Section 54 su


pra.133.Which has, for instance, reached a Memorandum of Understanding with agencies is Kuwait.134. See Business World 2009.135. See Wikramasekera at 26 above.136. "Malaysia bans foreign labourers," See Al Jazeera, January 22, 2009.137. Skeldon Ronald "Migration and Migration Policy in Asia: A synthesis of selected cases," inMigration and Development: Pro Poor Policy Choices, Ed. Tasneem Siddiqui, University Press, Dhaka2005.138. See Binod Khadria, “Migration in South and South West Asia.” Global Commission onIndustrial Migration, September 2005.139. Skeldon R. "Exploratory Policy Paper in Labour Migration and Trafficking within the GreaterMekong SubRegion," ILO TICW Project and UNIAP, ILO IPEC, Geneva, 2001.140. See Waddington "International Migration Policies in Asia in Migration and Development: ProPoor Policy Choices," Ed.Tasneem Siddiqui University Press, Dhaka 2005.141. See the criticisms of the use of funds by the Overseas Pakistani Foundation, Ercelan, Aly"Freezing or Dissolving Poverty in South Asia: The Significance of International Emigration andRemittances in Pakistan," PILER, January 2008.142. For a more general discussion of the attitude of trade unions see Wickramasekera at 26above.


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