(With special reference to Labour and Immigration Laws of Nepal)
In every country in the world, foreigners are required to have an employment permit from the respective government. If they do not consequences, such as immediate repatriation along with huge fines and imprisonments and even long term restriction in entry to the country can be implemented. In most of the country, the work permit is regulated by the joint mechanisms of the Labour Department and the Immigration System or something similar. Of course, the police is part of that, and a law enforcement agency can take immediate action if they find any foreigner working without obtaining the necessary labour/ employment permissions from respective authorities.
Nepal is a peculiar country in the world where massive numbers of foreigners have been working without obtaining necessary employment permit and appropriate visas. It is not limited to the private sector, but also in government-owned and popular multinational companies which have huge numbers of foreign employees against the provisions of Labour Law and the Immigration Law of Nepal. Massively, tourist visas and “not right visa” holders have found being employed by various government and nongovernmental sectors including hotels, restaurants, construction, and telecommunication, hydropower, banking areas and other systems of Nepal.
According to Labour Act, 2048 (1992) and Labour Rules, 2050 (1993), if a Nepalese citizen could not be available for any skilled technical post even after publishing an advertisement in a national-level public newspaper and journal, the manager may submit an application to the Department of Labour along with the evidence of such fact for approval to appoint a non-Nepalese citizen. If it is found, in conduction of an inquiry upon the submission of any application pursuant, that a Nepalese citizen would not be available for the skilled technical post mentioned in the application, the Department of Labour may, on the recommendation of the Labour Office, grant approval to engage a non-Nepalese citizen at work for a maximum period of up to five years not to exceed two years at a time and, in the specialized kind of skilled technical post, for a period of up to seven years. The manager who engages non-Nepalese citizens shall have to make arrangements for making the Nepalese citizens skilled and for replacing the non-Nepalese citizens gradually by them.”
There is no concrete statistics on how many foreigners are working and being employed against the provisions of the Labour Law and Immigration Law of Nepal. It is estimated that more than fifty thousand foreigners are working and living illegally in Nepal without obtaining appropriate visa and permission from the Department of Labour. The Labour Law is equally applicable to all those foreigners who work in any factory, company, organization, association, firm, or group thereof, established under the prevailing laws for the purpose of operating any industry, profession or service where ten or more workers or employees are engaged ( Labour Act, 2048). But who cares?
Unfortunately the state is under transition and suffering with the dilemmas of a conflict /post conflict situation where everything is fragile. The state is not currently capable to regulate with impunity the foreigners and its employers.
There are rare histories and stories where Immigration, Police or Labour Departments’ authorities have tried to regulate or monitor the issue. It should be the matter of concern for the Ministry of Foreign Affairs too, but no efforts have been found against such impunity of foreigners. Many times the media has reported that international criminals and smugglers have been using the territory of Nepal as their safe home since no productive regulation, monitoring, observation and surveillances are being used to manage the presence and activity of foreigners.
Unfortunately, in the port of entry or in diplomatic missions of Nepal, we issue visas to almost all foreigners without analyzing and assessing the applications and their backgrounds in most cases. Very often we do not verify the negative list that comes from the international or national security surveillances or intelligence system. In practice, we just issue tourist visas to all foreigners who seek to enter Nepal, no matter what their purposes are, and how long, and where and how they want to stay.
In most developed countries of the world, labour or employment permits are being obtained either by the employer or by the potential employee in advance as a precondition before applying for employment/work visa. And in some of the countries, the selected foreign employee gets a short term non-tourist visa in the port of entry or can obtain it from a respective diplomatic mission after furnishing all necessary documents. Afterward the visa gets extended after arrival once the employees or respective employers fulfill all terms and conditions and obtain employment permits and approval from the department of labour or similar authorities. In most of the countries immigration authority issues, like a renewal resident e-card, contains the information detailing the status of the particular foreigners, so they do not have to carry the passport and visa all the time.
In Nepal, there is pitiable coordinating among the respective authorities on the issue. The Labour Department, Immigration Department and other sectorial department and ministries rarely share and coordinate the information, or even use joint efforts to address the issues of disobeying and impunity of foreigners that would compel them to respect and follow the laws of Nepal.
The national security mechanism, including the Chief District Officer, Nepal Police, and National Investigation Department are also among accountable authorities to control and manage the unlawful acts and presence of foreigners, but these are not effective and never come into action against the foreigners till they commit serious crimes or are involved in aggressive public demonstrations, activities and issues of public interest that affect the public and nation on a massive level.
It is neither the employer nor the foreign employees in Nepal themselves who are serious about Immigration and the Labour Law of Nepal. Some of them don’t even know about the laws.
Additionally, there is also corruption, manipulation and irregularities that exist in the system that empower and gives courage to foreign employees and their employers in Nepal to ignore the spirit and provisions of the law.
Also, the law is itself faulty in a sense of clearness and procedural aspects. These laws can be easily manipulated, defined and executed in accordance with the discretion of authorities. The respective law enforcement authorities cannot execute it properly because of lack of resources, trained human resources, ICT, and scientific service delivery culture. So, the government should immediately address the problems and difficulties by arranging joint efforts for betterment, effectiveness and efficiency of these laws and the concerned authority.
Some immediate actions are essential; first, the government should instantly issue a public notice describing the provisions in terms of appropriate visa and labour/employment permissions along with times detailed. Secondly, a joint operation team can be formed containing the representation from necessary law enforcement authorities that need a massive operation in various sectors and geographical areas of Nepal especially in potential sectors and areas where foreigners are illegally and irregularly employed. Indeed, the Department of Immigration and Department of Labour should start regular and strategic inspections and monitor work to check and control illegal and irregular activities and the presence of foreigners. The employment/labour permits should be made mandatory before-hand to issue or extend visas for a particular period. By Law, both employees and employers should be made equally responsible for the labour/employment/permit and appropriate visas.
Furthermore, the Department of Immigration, Ministry of Foreign Affairs and Department of Labour must share the detailed information on the presence and job activities of foreigners who are employed or seeking to get employment in Nepal. At the end of the every year, the Department of Immigration and Labour should produce a yearly report describing in detail the employers who have recruited foreigners and also about the foreign employees themselves, their work detail and how long they are in Nepal under the definition of employment.
The horrible trend should be controlled immediately; otherwise it will be a threat on governance systems, the socio-economic situation, national security, sovereignty, and the financial system. Therefore, the government should immediately get rid of any disobeyers of the law. However, in the long-term, the Government of Nepal needs to form a team or commission of experts to review, revise, restructure and improve the overall system of Immigration and Employment Management of foreigners in Nepal.