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The airports of this region bid goodbye to thousands of people who are flying abroad for a better life every day.

Anurag Devkota, who works specifically on contemporary human rights issues of Nepali migrant workers, likes to wear many hats. He is involved in research, writing and is also an academician. As a labour migrant advocate, he has pioneered several positive changes regarding governance issues for migrant workers in Nepal.

Not a professional to shy away from challenges, Devkota has had successful strategic litigations like ensuring the voting rights of migrants and filing lawsuits questioning the alarming deaths of migrant workers. He has also advocated for access to justice for workers and provides legal assistance and counselling services.

Armed with an LLM degree on Rule of Law for Development (PROLAW) from Loyola University Chicago as a Gates scholar, a highly selective, last-dollar scholarship given to exceptional students, Devkota has also been advocating for the rights of Nepali migrants through his writings and plenary sessions. His research articles have been featured in prestigious academic blogs and journals including in the National Human Rights Commission of Nepal’s journal, GEFONT Journal, National Law College (Nepal), National Judicial Academy (NJA) Law Journal and internationally in the Olbios Journal, Oxford University Blog, Forum Asia, Right Corridor, including the Journal of Loyola University, Chicago. He is a regular columnist with a national daily where he writes about contemporary migrant rights and governance issues. His op-eds are also featured in other prestigious newspapers and journals.

Devkota has also served as a panellist in various programmes and platforms representing Nepal including in Leiden University, Netherlands, where he presented a paper on the status of undocumented migrant workers and at a Harvard University’s conference where he represented the issue of migrant deaths from Nepal. He has also presented a paper on human trafficking under the guise of foreign labour migration during the Migration Conference 2020 London. His chapter on ‘Understanding Irregularity in Legal Frameworks of National, Bilateral, Regional, and Global Migration Governance’ has been recently featured in a book ‘The South Asia to Gulf Migration Governance Complex’.

In this issue of Business 360, Devkota discusses his career interests and some prevalent issues of Nepali migrant workers. Excerpts:

What inspired you to take up law as a career?

I grew up observing my father who is also a lawyer and was amazed by the opportunities that the sector has to offer. It opens many doors for an individual. Someone who is interested in business could take up commercial law or you could be a legal advisor in any financial institution or business. You could also be a practising lawyer and specialise in litigation or be a human rights lawyer and fight against the social malpractices that are widely prevalent in our country and contribute to the bigger mission of a just and equal society. So the opportunities are plenty and this particular aspect attracted me to law.

Why did you specifically choose to focus on issues related to Nepali migrant workers?

When I was in law school I was fascinated by human rights as a subject. Somehow, other legal subjects did not have a similar impact on me like human rights and humanitarian law. Initially, I did my internship at the Nepal office of American Bar Association where I was introduced to various problems related to human trafficking as well as issues of transitional justice. Later, I went to Loyola University in Chicago as a Gates scholar to study Rule of Law for Development. After returning home I did try practicing litigation for a while but it didn’t interest me. Hence, I decided to devote my time to human rights. I felt I would be able to contribute more and have a bigger impact on society through this.

Human rights does sound like a simple subject but it is a vast issue. There are many aspects related to the term which takes years for one to comprehend fully. I have been involved since 2011 with problems related to human trafficking and challenges in Nepali labour migration. However, it was since 2015 that the problems of migrants escalated after the people’s war when many youths decided to opt for foreign employment. The problems and challenges are directly proportionate to the scale of outbound migration.

What are the major issues being faced by migrant workers?

When you look at the situation closely it is a mix of emotions. The airports of this region bid goodbye to thousands of people who are flying abroad for a better life every day. However, they also receive hundreds of dead bodies in wooden boxes on a yearly basis. Every time I see the dead body of a migrant it reminds me of shattered dreams and the end of hope for dependent family members. Similarly, there are hundreds languishing in foreign jails for offences they committed unknowingly and some for crimes they did not commit. This is all due to the absence of proper legal representation because migrants don’t have the knowledge to navigate through the complex criminal laws of the destination nations.

What compounds the problem is that migrants get swindled and are misrepresented by their own countrymen, the so called agents, at home itself. Migrant workers are not supposed to pay any recruitment fees as per the existing laws but they end up paying exorbitant amounts which is done by obtaining loans most often at high interest rates from loan sharks. Moreover, when they reach the destination the migrants are assigned to jobs other than what has been mentioned in the contract letters that are provided to them in Nepal and the wages offered are also low compared to what has been promised. Hence, a majority of them end up being undocumented in the process and lose protection from the government.

Similarly, their access to justice is also a major challenge. The complex nexus of human trafficking and labour migration has not been spelled out through the laws. There is lack of rights-based laws and governance which we are trying to address though Strategic Litigation. Our focus has always been on policy reform and I strongly believe that with reforms in the institutional and normative frameworks we will be able to establish a pro-migrant worker regime. We want to establish rights-based governance where their labour is respected and their rights are guaranteed and protected.

Are we lacking in the current laws?

Absolutely. The current laws do not speak the language of migrant workers. The rights-based aspects are widely missing in the current laws. The rights of migrants have not been recognised anywhere in the laws. So, our overarching goal has been a reform in the laws and policies that are related to migration. We want to introduce proper amendments from the rights-based perspective. Though the pandemic did cause a lot of havoc it was a wake-up call for many. When migrants started returning in droves as they were laid off, stories of unpaid salaries and their hardships started to emerge. The pandemic showed us the harsh reality about how weak our laws and governance are. Many workers were left stranded during the initial phase of the pandemic. Their right to return was also not envisioned in any of our ruling legislations.

What changes do you anticipate from the government?

It is time the government prioritises the issues of labour migration. As much as the country benefits from and values the contribution of migrant workers and remittances, the country has equally undervalued the everyday concerns and challenges of these workers.

Many workers lose their lives in the destinations but we have failed to identify the cause of their deaths. We still rely on the death certificates issued by the hospitals of the destination countries. Most often, the cause of death is mentioned as ‘natural death’ or cardiac arrest. What I have failed to understand is what natural death really means. We need to investigate the underlying causes of the so-called natural death and cardiac arrest – the why’s and how’s of the deaths are widely ignored. We have demanded that autopsies or post-mortems be conducted as spelled by the court but the government has failed to implement it.

The other issue that we have been working on is the external voting rights of the migrant workers. As long as they are citizens of the country they need to be able to exercise their right to participate in the elections. We have taken this issue to the court but it has not been formalised yet. Though the Supreme Court has issued a directive order the right to external voting has not materialised may be due to various political reasons and wills.

Another area where we are lacking as a nation is we do not have proper reintegration programmes to retain returnee migrant workers. This was very visible in the recent months. Hundreds of migrants returned home during the initial months of the pandemic but as soon as things got better a majority decided to return for foreign employment. So, proper plans and policies must be framed and implemented by the government to retain migrants because when they come home they do come with a lot of skills and knowledge and this needs to be tapped into. Also, new and safer migration corridors need to be identified.

How can the prevalent malpractices be controlled?

Change is a gradual process and also a collective effort of all stakeholders. We cannot expect everything to change overnight but there has to be a starting point and we have begun doing that. Also, just one party trying to bring about change in the society will not work and everybody needs to chip in from their respective sides. For instance, the legal vacuum regarding voting rights has been bridged by the court but the government still is reluctant to implement it. This is where institutions like trade unions and academia, among others, need to step in by exerting pressure on the government.

We have witnessed a few changes through our litigations but that is not enough. The major ones require political will which is still lacking.

How does an unstable government impact the psychology of the migrant worker?

This is one area that many people have not looked into but I believe an unstable government does have an impact on the psychology of migrant workers. At present, we don’t have a minister specifically looking into the sector. In the last three years we have had more than three ministers who have been assigned this portfolio. So what happens is one person initiates the process but by the time anything substantial can be done there is a change either in the portfolio or the government itself.

I have spoken to many migrants and all speak the same language – they have no expectation as such from the government. All they wish is to have their concerns addressed through the respective embassies but that too has not been forthcoming. When there is a stable government that works on a long-term vision then it will provide some respite to migrants.

How do you view the judicial system of Nepal?

I would say that though there are a few administrative glitches the judicial system in Nepal has done some exemplary work. Even when referring to our cases when we compare the judiciary to the executive we can see a vast difference. The court has been very pro-migrants and played a proactive role in addressing the concerns and reforming the whole institutional and normative frameworks. We have received positive verdicts in all of our cases which is very positive and we do acknowledge the role played by the court. Even during the pandemic, the rights of migrant workers was established although it was not covered by any law.

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