Prepared by:Amdadul Haque

Department of Political ScienceUniversity of Dhaka

The Overseas Employment and Migrants Act 2013: A Critical Analysis

The Overseas Employment and Migrants Act 2013 (Article 2)

Migration: “the departure of a citizen from Bangladesh for the purpose of employment in a trade or profession in any foreign country.”Migrant: “any citizen of Bangladesh who has migrated to a foreign country for the purpose of overseas employment in any work or profession and is staying in that country”Migrant Worker: “any citizen of Bangladesh who, for wages,—

(a) is in the planning process to migrate for work or is departing to any foreigncountry for work;(b) is employed in a trade or profession in any foreign country; or(c) has returned to Bangladesh at the end of the tenure of employment or without

having completed the tenure of employment from a foreign country”

Conceptual Analysis

Types of Migration.1. InternalExample: Rural to Urban

2. External –International

3. Forced Migration

Tend to be environmental or political ideas. If a person can prove they are a forced migrant then they can become a refugee and seek refuge legally in another country.

4. Voluntary Migration eg Mexico to America

Usually influenced by push and pull factors. Tend to be social or economic reasons

International Organization for Migration (Report 2014 on International Migration)International Migration

Estimated International Migrants in the World: 244 millionThe percentage of migrants in the global population: 3.3% Percentage of women in the world migration: 48%Estimated volume of remittances sent by migrants in 2014: 583 billion$The estimated volume of remittances, which were sent by migrants to developing countries in 2014: 436 billion$

National Migration: BangladeshIn 2014, 426,000 people migrated to work in another country.The states of the Gulf Cooperation Council (GCC) are the most important destinations for Bangladeshi laborers.The share of women in Bangladesh’s overseas labor is 18 percent in 2014.In 2014, remittances increased to US$ 14.9 billion.

Facts & Figures on World Migration

Number of Migrant Labors: Bangladesh

Core Human Rights Treaties on Migration 1. International Covenant on Civil and Political Rights 1976

Article 8; prohibition of slavery, forced labor and trafficking Article 13; restrictions on illegal migrants

2. International Covenant on Economic, Social and Cultural Rights 1976 Article 3; equality of men and women before the law Article 8; right to form and join trade unions

3. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 2003

most comprehensive human rights treaty on the rights of migrant workers which was adopted in 1990 entered into force in July 2003.

responding particular situations and vulnerabilities of migrant workers involved in international labor migration.ILO Conventions on Migration1. The Convention on Migration for Employment 1949

“Non-discrimination in wages, union activities and benefits and social security” (Article 6). illegal immigration shall be subject to appropriate penalties” (Article 13)

2.Migrant Workers (Supplementary Provisions) Convention1975 “illegally employed migrant workers on its territory” (Article 2 ) penalties against traffickers (Article 6)

International Legal Instruments Related to Migrant Workers

Historical Overview of the Migration Scenario of Bangladesh After independence in 1971, new opportunities for international migration

emerged. Rising oil prices- exploring markets in the Middle East Gradually expanded to the newly industrialized countries of Southeast Asia Overseas Employment from Bangladesh officially started from 1976

Bangladesh’s Domestic Legal Regime1. The Constitution of Bangladesh

The basic human rights of migrant workers and members of their families have been directly or indirectly recognized in the Constitution of Bangladesh. (Articles 11, 14, 19 and Part III (Fundamental Rights))

2. The Emigration Ordinance 1982• Section 5: safeguarding the interest of emigrants and promoting overseas

employment Section 7(2): recruitment without a valid “demand” Section 9: advertisement Section 14: canceling or suspending licenses Section 23: prohibition of charge higher than the prescribed amount of fees Section 26: setting up of special courts

Bangladesh’s Domestic Legal Regime Related to Migrant Workers

3. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990

Date of Ratification: 24 August 2011 Date of Signature: 1998

4. The Overseas Employment Policy 2006 the protection of migrant workers’ rights the recruitment of workers for overseas jobs the welfare of migrant workers and other expatriates

5. The Prevention and Suppression of Human Trafficking Act 2012

Chapter II: Human Trafficking and PenaltiesChapter III: Filing of Complaints and InvestigationsChapter IV: The Anti-Human Trafficking offence Tribunal and the

Trial of OffencesChapter V: Assistance, Protection and Rehabilitation of The Victims

of Human Trafficking and Witnesses

Bangladesh’s Domestic Legal Regime Related to Migrant Workers (Cont..)

The assent of the President on the 27th of October 2013

Repealing the Emigration Ordinance, 1982 (Ordinance No. XXIX of 1982)

Chapters: 9Articles: 49

The Overseas Employment and Migrants Act 2013

To promote opportunities for overseas employment To establish a safe and fair system of labor migration To ensure rights and welfare of migrant workers

and members of their families To enact a new law by repealing the Emigration

Ordinance, 1982 (Ordinance No. XXIX of 1982), To make provisions in conformity with the

International Convention on the Rights of Migrant Workers and the Members of Their Families 1990 and other international labor and human rights conventions and treaties ratified by the People’s Republic of Bangladesh

Objectives of the Act

Objectives of the Policy MakersThree Objectives Lawful, documented and legal emigration Achieving favorable response from donor and receiving

country To abolish humanitarian crises

Civil Society Pressuring on the Govt. agencies to formulate the Act Highlighting the issue of migration and refugee crisis Focusing on legal and institutional challenges of

migration

Objectives of the Act (Cont..)

Recruitment Agents, License, and such others (Art, 9-18)

Registration of migrant workers and protection of their interests (Art. 19-21)

Rights of Migrant Workers (Art. 26-30) Right to information, legal and others Offences, Penalties, and Trial (Art. 31-41) cognizable, non-bailable and non-compoundable

(Art. 39) Including in the schedule of the Mobile Courts

Act, 2009 (Art. 41)

Specialties of the Act

Art. 9: License Art. 10: Eligibility for license Art. 12: Suspension and cancellation of licenseArt.18. Forfeiture of surety, and such others confiscating the whole or part of the surety moneyArt. 19: Registration of migrant workers and protection of their interests registered with the Bureau and concerned trade and

profession recordedArt. 21. Cost of MigrationArt. 22: Employment contract worker’s wages, compensation, accommodation facilities, death or injury etcArt. 23: Labor Welfare WingArticle 24: Duties of Labor Welfare Wing Listing, working condition, benefits and other problems etc.

Major Articles of the Act

Art. 26. Right to information Process, condition, employment contractArt. 27. Legal aid Victims of fraud, Art. 28. Right to file civil suitArt. 29. Right to return homeArt. 30. Financial and other welfare programmes Bank loan, tax exemption, saving schemes ,investmentArt. 31: Penalties for sending migrant workers overseas in unlawful mannercharging unlawful amounts of fees, and such others. : 5 years imprisonment , not

be less than 100000Art. 32: Penalty for publishing unauthorized advertisements1 year, 50000

Major Articles of the Act (Cont..)

Art. 33: Penalty for using unlawful means for collecting demand note, visa or work-permit for overseas employment, or for trading in such documents

Art. 34: Penalty for arranging for departure through places other than the specified place 10 years, 500000Art. 35. Penalty for other offences 6 months, 50000Article 36. Penalty for abetting or instigating an offence, and such othersArticle 37. Offences committed by a companyArt. 38. TrialUnder the Code of Criminal Procedure 1898 (Act No. V of 1898), triable by the Judicial Magistrate of First Class and the Metropolitan Magistrate Concluding within four months- extending more two monthsAt. 39: Cognizable, non-bailable and non-compoundable Articles 33 and 34Art. 40 : Act deemed to be included in the schedule of the Mobile Courts Act, 2009Art. 41. Complaints to the Government

Major Articles of the Act (Cont..)

At least 32 mass graves discovered on a remote and rugged mountain in border district Sadao, in Songkhla. The victims were job-seekers hoping for a better life and wanting to change their fortunes.

Amdadul Haque, ‘A challenge for Human Security’, Dhaka Tribune, 11 May, 2015 (Accessed on: 10th April, 2016)

According to Article 34 of the law, the local police, TNO, elected local representatives, ministry of Expatriate Welfare and Overseas Employment and other related ministries, BMET and BAIRA were empowered to file cases against culprits.

But it is unfortunate that till date no case has been filed under this law.

(Tasneem Siddiqui, ‘Where is the Migration Law 2013?’, The Daily Star, 2nd December, 2014 (Accessed on 10th April, 2016))

Recent Incidents of Illegal Migration and the Application of the Act

Structural Weakness of the Trial and the Code of Criminal Procedure, 1898

Structural Weakness of the Mobile Court Act, 2009 Illusion between Directory and Mandatory Nature of Act No Measure against Unregulated Recruiting Agencies Lack of Punishment for the Failure of the Responsibilities of the

Authorized Officer of the Labor Welfare Wing Lack of Appropriate Measures in Destination Countries Lack of Measures for the Illegal Migrants Cheated by Human

Traffickers Lack of Rules of the Act Lack of Defined Time Frame to Finish the Case No definite Authority of the Government Illusion regarding Legal Aid for Migrants Lack of Proper Compensation

Limitations of the Act

Directory provisions to mandatory in nature The Code of Criminal Procedure 1898- the Judicial Magistrate of First

Class and the Metropolitan Magistrate to the Additional Judges of the High Court Division

The Mobile Courts Act 2009 (Act No. 59 of 2009)- Labor Welfare Wing: If the authorized officer fails to do this, he or she

should be ensured punishment. In the institution of the suspension and cancellation of license, there

needs to have a representative of the migrants. Proper measures should be included for the brokers and gang of

brokers under Article 31. How the cheated persons shall be repaid their money should be

clarified in the Act. The more the license will work for recruiting workers, the more

amount of security money will be kept as a bank solvency in order to ease the repayment of the cheated workers.

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