Relevance: mains: G.S Paper II: Policy
India has the largest number of migrants abroad in the world today. It is also the largest remittance receiving country in the world. In January 2019, just three months before the Lok Sabha elections, the Ministry of External Affairs published a Draft Emigration Bill for public comments.
The 2019 draft bill aims to change the direction of policy from the regulation of emigration to its management. The attempt is to understand the institutional framework of emigration in India and comprehend how the 2019 draft bill perceives and aims to manage the world’s largest emigrant population.
First, the history of migration in India and the roots of modern day migration in the colonial period is briefly summarised, including the emergence of the Emigration Act, 1922.
Second, the forms of migration post independence and the conditions under which India adopted the Emigration Act, 1983 in the light of large-scale emigration of semi-skilled and unskilled labourers is dwelt upon.
Third, after understanding the institutional framework of the Emigration Act, 1983, the new draft Emigration Bill, 2019 is assessed and the major gaps in its approach to emigration is discussed.
This underscores how the 2019 draft bill inadvertently further regulates the entire emigration process, which is far from its desired objective of managing it.
Finally, the urgent need for an ex ante migrants’ rights approach towards emigration is emphasised.
Emigration from India
India has one of the longest and largest episodes of emigration (outmigration) in the world. Different forms of emigration from India have been persistent since the 2nd century BCE, when Alexander the Great took many Indians back to Central Asia and Europe. From slaves and mercenaries to pilgrims and artisans, throughout the ancient and medieval ages, the nature and destinations of Indian emigration kept evolving.
Systematic migration flows from India started during the colonial times in the 18th century.
As the scale of this emigration flow increased, it led to low wages and exploitation of the labour force. So in order to regulate indentured emigration and to provide a mechanism for emigration, the British Indian government enacted the Emigration Act in 1922.
The 1922 act defined emigration as,
The departure by sea out of British India of any person under an agreement to work for hire, or when assisted so as to depart for the purpose or with the intention of working for hire or engaging in agriculture, in any country beyond the limits of India.
Although the purpose of the 1922 act was to ensure that labour is not exploited when away from the home country, it did not take into account the family members of emigrants who migrate later or along with the migrants. Even after 1947, India continued to follow the 1922 act.
Independent India saw the emergence of two different types of migration patterns and destinations.
First, the emigration of skilled workers and professionals to Western countries in the early 1950s, which accelerated post-economic reforms in the 1990s.
Second, the emigration of semi-skilled or unskilled labour to West Asian countries with the boom in oil-driven migration into the Gulf region.
Emigration Act of 1983
To safeguard the rights of Indian migrants, most of whom were semi-skilled and unskilled labourers, the Ministry of Labour enacted the Emigration Act, 1983. The act repealed the 1922 act and brought
together, revised, and updated the various other emigration laws of the time. This 1983 act defines an emigrant as “Any citizen of India who intends to emigrate, or emigrates, or has emigrated.”
As in the case of the 1922 act, the 1983 act also excludes all dependents of the emigrant. Even if the dependent accompanies the emigrant or departs later to visit the emigrant, they do not fall into the purview of the 1983 act. Furthermore, any person who has been residing outside India after attaining the age of 18 for at least three years is also not considered an emigrant .
With no welfare provisions and protections in place for dependents, often family members are left behind at the source of origin. In India particularly, while short distance migration (intra-state) often includes family members, when people migrate outside the state or country, they typically leave their families behind. This is a common feature of migration in developing countries. Male members often migrate alone for work while their families stay back home. In fact, there has been an alarming increase of divorce notices sent to wives of non-resident Indians (NRIs) from abroad while planning to join the emigrant spouses at the destination.
The Emigration Act, 1983 only regulates the flow of emigrant workers leaving the country. It does so through stringent procedures that apply to recruitment agencies, foreign employers, and the migrants themselves. The Indian government has, through a series of executive orders, further divided the type of migrants as per skill, educational qualifications and destination into Emigration Check Required (ECR) and Emigration Check Not Required (ECNR) categories.
Only those emigrants who are low skilled and travelling to 18 countries in the Gulf and South East Asia are required to go through emigration clearance (MOIA 2007). But, if the low-skilled worker has a qualification of Class 10 or higher or is travelling to any other country, they are exempted from the ECR category and thus, from the purview of the 1983 act.
The key operational assumption here is that those emigrants who are unskilled or low skilled need additional protection as they are more vulnerable than higher-skilled migrants or migrants moving to more developed countries. Such a regulatory mechanism has proved to be discriminative in practice and places unnecessary restrictions on migrants. This is particularly true for female emigrants because women under the age of 30 migrating to ECR countries are not given an emigration clearance, forcing them to look for alternative, often irregular channels.
Apart from not providing rights to dependents as emigrants, and not taking into consideration family migration and students’ migration, the framework also creates technological barriers through the eMigrate portal. Those who do not migrate through the official eMigrate portal of the Ministry of External Affairs are seen as “irregular,” making it difficult for them to receive help when they need assistance in a foreign land. The ECR procedures often act as barriers for migrants and encourage riskier pathways towards foreign employment.
The 2019 Draft Bill
After a gap of 35 years, in 2019, a new draft policy framework for managing and protecting the world’s largest stock of international migrants was released for public comments (Ministry of External Affairs 2019b).
The 2019 draft bill aims to
provide for comprehensive emigration management, to institute regulatory mechanisms governing overseas employment of Indian nationals, to establish a framework for protection and promotion of welfare of emigrants and for matters connected.
The 2019 draft bill attempts to move from regulating the process of emigration to managing it. However, outside of some subtle changes in definitions, the 2019 draft bill continues the regulatory approach of the 1983 act.
It continues to rely on the regulation of recruiting agents/employers and on the discretion of the central government. In fact, the bulk of the 2019 draft bill focuses on establishing new statutory bodies and granting them with broad and vaguely defined duties.
A few positive changes in the institutional framework that differ from the previous acts have been the addition of students and the provision for recruitment agents to employ subagents. But, other forms of migration are ignored just as in the previous two acts.
Exclusion of family migrants and irregular migrants: Family members reuniting with family members abroad, who can be Indian emigrants, NRIs and/or foreign nationals constitute a major number of out migrants from India.
But, the contributions of women and families are always underplayed or ignored in the much publicised success stories of Indians settled abroad. 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 often convert their immigration status at the destination and become workers.
This is a factor that is not considered in the 2019 draft bill.
In an increasingly hostile political environment for immigrants worldwide, these “dependent migrants” ave increasingly little economic or political freedom in their destinations.
The step taken by the United States (US) government to repeal the employment eligibility of spouses of high-skilledH-1B immigrants, the majority of whom are from India, is an example.
The new visa policy plans on repealing the rights available to certain categories ofH-1B spouses to work (Office of Information and Regulatory Affairs 2019 ).
It also plans to strengthen the policy to ensure that US workers are better protected.
Another reason why family members should be taken into the purview of the act is due to the increasing instances in which Indian spouses are lured abroad for marriages and then stranded or exploited. Between January 2015 and November 2017, the Ministry of External Affairs addressed 3,492 complaints of distressed Indian women deserted by their NRI spouses (Ministry of External Affairs 2019a).
Although migration creates better development opportunities for both countries of destination and origin, factors like exploitation in the labour market and separation from family members can have large-scale negative impacts on remittances.
Another excluded category is that of the irregular/undocumented migrants. The common perception is that irregular migrants are those who leave India through informal channels, but many migrants become “irregular” due to their expired or inadequate visas/permits. In Gulf countries, when migrant workers flee their employers to escape exploitation, a single police complaint can make them “illegal.”
In addition to this, policies like the Nitaqat in Gulf Cooperation Council (GCC) countries mandates employers to employ nationals, making migrants vulnerable to the fear of losing jobs and leaving them with no other option but to work as irregular migrants at the destination.
Figures from the US and Europe also reveal a dramatic rise in the number of Indians being apprehended for immigration-related crimes and deported in some cases. These migrants live in incredibly precarious situations with many often living in poverty-like conditions, struggling to support themselves and their families.
Regulation of intermediaries:
The 2019 draft bill incorporates and reconciles many of the executive orders passed in the aftermath of the 1983 act. These orders formed the backbone of the current regulatory framework for recruiting agents. It also includes subagents and student enrolment agencies into its regulatory purview.
While these intermediaries are often to blame for the harmful and exploitative situations emigrants find themselves in, they also play an instrumental role in minimising information asymmetries and costs for workers and students going overseas. Thus, any regulatory framework needs to advocate strong incentives for migrants’ welfare agencies with the effective supply of affordable intermediary services for both prospective migrant workers and students.
In the past decade, emigration from India to the Gulf has decreased considerably. India recorded a decline of 34.6% in the number of registered workers immigrating to Gulf countries between 2014 and 2016 (Ministry of External Affairs 2019a).
The Kerala Migration Survey 2018 also recorded a decline in the number of outmigration by one-tenth of the total number of emigrants in 2013. The government blames this on falling oil prices and slowing economic growth in the Gulf.
But, emigration from Bangladesh to the Gulf increased in the same period, attributed to a more liberal emigration policy, suggesting that the established regulatory process has inadvertently created barriers to migration and increased the cost of emigration.
The current approach risks disincentivising recruiting agents from operating legally. Thus, this can inadvertently increase informal/illegal channels for migration abroad.
Furthermore, the 2019 draft bill prescribes the same set of regulations for student enrolment agencies as the recruiting agents. This is extremely problematic as student enrolment agencies have a different business model and a completely different customer base, that is, of students applying overseas.
This further showcases the government’s limited understanding of the emigration process and re-emphasises the fact that the Indian government’s approach to migration is focused less on welfare and is more geared towards managing the export of human capital from India.
What about return migrants and the families left behind?
To effectively ensure welfare, any emigration policy framework needs to consider the complete migration cycle: pre-departure preparations, journey, the destination and return.
While the 2019 draft bill addresses the first three parts of the cycle, it completely ignores return migration. Globally, one in four migrants today is a return migrant. In fact, most Indian migrants to the Gulf return home.
Similarly, the 2019 draft bill also ignores the families left behind. As of now, Kerala has one million women whose husbands are away, two million children whose parents are away and four million elderly whose adult children are away.
The helplessness and suffering of these families during the August 2018 Kerala floods revealed their vulnerability, which is also a social cost borne due to emigration.
Migrant Rights-based Approach
Many of the oversights in the 2019 draft bill reiterate the government’s restricted understanding of migration from India. There is no complete database on the number of Indian migrants abroad.
The 2019 draft bill also personifies the government’s primary view of emigration policy as a means for managing the export of human capital rather than as a more humanitarian framework for safeguarding Indians overseas.
However, migration is a complex and highly dynamic process with constantly evolving profiles of migrants and their destinations. Only a clearly articulated, ex ante migrant rights-based approach inclusive of all Indian migrants abroad can be considerate of this and provide Indian migrants abroad with adequate security and welfare.
An inclusive rights-based approach puts the onus on the Indian government to ensure that any subsequent executive order or scheme safeguards all emigrants abroad at every stage of the migrant’s life cycle. It should also provide the necessary guidance for the updation of such order and schemes as the emigrant population inevitably evolves, thus making the emigration policy future-proof.
Migrant rights are implicitly or explicitly expressed in international human rights and public law instruments. There are a whole host of multilateral migration-related treaties and conventions, which can provide the necessary guidance for a truly inclusive, visionary and future-proof Indian emigration policy framework.