The puzzle in front of the Indian government is large and complex: how to safeguard and manage the world’s largest emigrant population? In this June 2019 Redux edition of Gotta Keep on Movin’ we explore some possible answers.
Specifically we cover:
- The policy regime that governs international labour outflows from India: an analysis of the Emigration Act, 1983.
- The new Draft Emigration Bill 2019
Despite significant migration along the India-Gulf corridor for over three decades and the increasing mobility of families, professionals and students to developed countries, India does not have a comprehensive policy on international migration.
To kick things off things, IMN Founder Varun spent some time with the (until very recently) Secretary of the Department of Overseas Indian Affairs, Dnyaneshwar Mulay. They discuss the pressing issues faced by Indian emigrants and the role of the Indian government.
Hosted/Directed by Varun Aggarwal
Produced by Nakul Aggarwal
Theme Track from Kenji Kawai’s Ghost In The Shell (Original Soundtrack)
Emigration Act 1983
India’s migration policy is based on the legislative framework set out in the Emigration Act 1983. The guidelines for this act are rooted in the Supreme Court case “Kanga and others Vs the Union of India.”
India follows a regulated system with regard to foreign employment policy. The policy regime mainly addresses temporary and contract migration. The Emigration Act, 1983 deals with the emigration of Indian workers for overseas employment on a contractual basis and seeks to safeguard their interest and ensure their welfare. The Act also vests in the Protector General the responsibility of ensuring the protection and welfare of the emigrants and regulating the recruitment process to prevent malpractices.
A crucial aspect of the Act is that it defines emigration as “the departure out of India of any person with a view to taking up any employment (whether or not under an agreement or other arrangements to take up such employment and whether with or without the assistance of a recruiting agent or employer) in any country or place outside India.” This means that the Act only takes economic migrants into account. This narrow definition leaves out a large number of migrants in other categories who could be family members or dependents but also demonstrates the restrictive manner in which the policy framework views emigration.
Based around this definition and in order to protect the most vulnerable at the destination countries, the Indian Government has created, through a series of executive orders, separate processes of emigration for skilled and unskilled labourers, based on their educational qualifications and the destination. Those who intend to migrate to United Arab Emirates, Saudi Arabia, Qatar, Oman, Kuwait, Bahrain, Malaysia, Libya, Jordan, Yemen, Sudan, Brunei, Afghanistan, Indonesia, Syria, Lebanon, and Thailand with an educational qualification below class 10th, are required to get an Emigration Clearance (ECR).
Further, in order to ensure that female migrants are not exploited at destination, those women who are under the age of 30 and fall under the ECR category are not given an emigration clearance. Although the purpose of the 1983 Act was to safeguard the rights of the increasing number of semi skilled and unskilled emigrants, in practice, it becomes rather restrictive in nature.
The Draft Emigration Bill 2019
After 35 years of the 1983 Act, the Ministry of External Affairs published a Draft Emigration Bill 2019 for public comments. The objective of the Draft Bill 2019 was to move from a regulatory approach to migration to management of it.
In order to do that, the Draft Emigration Bill 2019 sets up a comprehensive institutional framework that takes into account the “whole cycle” of migration. The Bill seeks to put in place a robust institutional framework that is responsive, easily accessible, technology driven, and strengthens the welfare and protection of Indian nationals in distress abroad. MADAD, e-Migrate, Indian Community Welfare Fund, Pravasi Bharatiya Sahayata Kendras, Pravasi Bharatiya Bima Yojana, Pravasi Kaushal Vikas Yojana, Pre Departure Orientation Programmes are examples of initiatives and institutions through which the Bills aim to reach its objective.
The entire migration cycle starts from the preparation of migration, takes into account the journey, rights at destination, return and re integration. This Draft Bill takes into account the first three but does not consider return and re integration.
In order to move towards management of emigration, the bill broadens its purview and includes students along with economic migrants. However, the emigration procedure set up is identical in both cases. The Bill does not take into account the fact that that the two categories of migrants migrate with different intentions and face different struggles at destination. Recognising that the process of emigration is complex and involves a large number of stakeholders, it includes sub agents as people who can be hired by recruiting agents. Although, on paper, this looks like a positive move, in practice it adds to the liabilities of the recruiting agents who are employing these sub agents.
Major differences in the Emigration Act 1983 and the Draft Emigration Bill 2019
- Definition of Emigration
The Emigration Act 1983 defines the act of emigration only for economic migrants, whereas the Draft Emigration Bill 2019, also takes into purview students as emigrants.
- Institutional Framework
The Emigration Act 1983 regulates the process of emigration in order to safeguard the rights of semi skilled and unskilled labourers, but the Draft Emigration Bill 2019 moves from regulation of emigration to its management.
While the Emigration Act 1983 relies on the Protector of Emigrants and Protector General of Emigrants to ensure that the rights of migrants are safeguarded, the Draft Emigration Bill 2019 introduces new institutions such as the Emigration Management Authority (EMA) under which lie the Bureau of Emigration Policy and Planning (BEPP) and the Bureau of Emigration Administration (BEA) for ensuring that emigrant rights are safeguarded.
- Agencies (Sub Agents)
While it was illegal for a recruiting agent to hire a sub agent as per the Emigration Act of 1983, the Draft Emigration Bill 2019 allows for the hiring of a sub agent.
- Emigration Clearance
The Emigration Act 1983 divided emigrants on the basis of skill, educational qualification, and destination. As per the above factors, emigrants were divided into Emigration Check Required and Emigration Check Not Required categories. However, the Draft Emigration Bill 2019 has no mention of these differential categories, which means that all emigrants will have to undergo the same procedure for emigration clearance.
While the Draft Emigration Bill 2019 does take a positive step towards the welfare of emigrants, these remain significant oversights, including return, re-integration, and the entire migration cycle of family migrants.
Why is it important to include family migrants in the purview of the emigration policy framework?
In the stories told of successful Indians abroad, the contributions of families are always underplayed or ignored. Studies show that family members at destinations provide essential material and emotional support for emigrant workers and often contribute towards the remittances sent back home. Many family migrants also often convert their immigration status at destination and become workers.
Issues faced by non economic migrants at major destination countries:
What is the emigration policy in other major source countries?
South-north and south-south migration constitutes the majority of emigration flows with countries such as India, Bangladesh, Nepal, and the Philippines accounting for large numbers. According to a report by the United Nations Department of Economic and Social Affairs (DESA), in 2013, 4 major source countries (Bangladesh, Pakistan, Indonesia, and Vietnam) had policies in place to increase emigration while 18 had policies maintaining the existing levels.
The Philippines has an existing Migrant Workers and Overseas Filipinos Act of 1995 which regulates and promotes welfare and safety standards for migrant workers and their families. Bangladesh’s Emigration Ordinance of 1982, replacing the Emigration Act of 1922, regulates the recruitment and placement of Bangladeshi migrant workers going abroad. Bangladesh also ratified the UN International Convention on the Protection of Rights of All Migrant Workers and Members of Their Families, signed a special MoU with Malaysia in 2012, and enacted the Overseas Employment and Migrants Act in 2013. Both Pakistan and Nepal are currently putting special emigration frameworks in place — the National Emigration Policy in Pakistan and the National Migration Health Policy in Nepal.
There is no complete database number of Indian migrants abroad. There is also an erroneous assumption that the welfare provisions of the destination states are enough to safeguard the rights of emigrants. The 2019 Draft Bill personifies the government’s primary view of emigration policy as a means of managing the export of human capital rather than a humanitarian framework for safeguarding Indians overseas.
At Indian Migration Now, we are working with Indian lawmakers to change and update the Indian emigration policy framework. We are also analysing (using MIPEX, DEMIG and other policy indices) and tracking the immigration policy frameworks in the major destinations for Indian emigrants. We wrote our June Newsletter on the Gulf perspective of migration which can be found here.Eventually, we hope to use our policy and data repositories to give much more substantial and complete insights on the scale, drivers, and impacts of international migration from India.