The subject of Emigration is given in Part 1 of the Federal Legislative list. Emigration Ordinance,1979 (“Ordinance” hereinafter) was promulgated on 23 March 1979, whereby Emigration Act, 1922 was re-enacted. The Emigration Rules,1979 (“Rules” hereinafter) were made by the Federal Government in Exercise of powers conferred by Section 16 of Emigration Ordinance, 1979.
In Schedule II, Sr. No. 27 (11) of the Rules of Business, 1973, the Overseas Pakistanis and Human Resource Development Division has the Administrative control of: – (a) Overseas Employment Corporation; and (b) Bureau of Emigration and Overseas Employment.
After careful Perusal of Ordinance and Rules it transpires that there are 8 entities under the Ordinance and Rules, which are given as follows; –
I. Overseas Employment Corporation (OEC).
II. Advisory Committee.
III. Overseas Employment Promoter (OEP).
IV. Association of OEP.
V. DG Bureau.
VI. Protector of Emigrants.
VII. Labour Attach’
VIII. Overseas Pakistanis Foundation (OPF) and Welfare Fund
- Overseas Employment Corporation (OEC).
S.2 (1)(c)
“Corporation” means Overseas Employment Corporation Limited
OEC is a statutory Corporation of the Federal Government regulated by the provisions of Ordinance, 1979 and Rules made thereunder.
S. 4A
Functions of Corporation. – Subject to the provisions of this Ordinance and the overall supervision and control of the Secretary of the division concerned, the Corporation shall take such measures as may be necessary to promote emigration of citizens of Pakistan.
As per S.9 the Corporation can recruit a citizen of Pakistan etc., for the purposes of emigration, without prior permission of the Director General or the Protector of Emigrants.
Powers of Secretary of Division concerned under Section 4A of the Ordinance, 1979 are not delegated to the Director General, Bureau of Emigration and Overseas Employment (DG). OEC is not required the license under Section 12 and permissions of Section 9.
Section 13 further clarifies that if any time Federal Government withdraws licenses of the OEP granted under Section 12, the OEC will survive that withdrawal. Rather OEC is the beneficiary of the withdrawal of the OEP licenses and will be entrusted with the functions of emigration for employment abroad.
As per Rule 17 of Rules, 1979, all the demands of manpower from the Foreign Government, received by any agency of the Federal Government or the Provincial Government, shall be dealt by the OEC without approval of the DG.
Section 15, Rule 18, 19, 20 and 20A of the Rules, 1979 are not applicable on OEC.
OEC is a statutory body, under the control of the Secretary of the Division concerned, with the statutory duty to promote Emigration and not under the control of DG and Protector of Emigrants.
For the purpose of promotion of emigration of citizens of Pakistan by the OEC, a sum of two hundred is required to be levied in respect of every person permitted by the Protector of Emigrants, for employment abroad in private sector, public sector or direct employment, and that sum is prescribed to be deposited in the account of OEC as per Rule 23 (4A), Rules, 1979. Statutory bodies are created by law and not by license. Rule 23 (4A) was held to be intra vires by the Islamabad High Court, Islamabad vide its judgement delivered in case titled “POEPA vs. FOP” in WP No.4276/2019, decided on 30-03-2022 and the same has attained finality.
OEC is exempted from the requirements of S. 9, 12, 13, 14, 15, 16 (2)(b)(i)(r), 17 (2)(c) and 17(4) of the Ordinance, 1979 as well as Rule 4, 18 to 20A and 21 of the Rules, 1979.
OEC is not allowed to be a member of OEP Association, constituted under Rule 2(a) and 24 of the Rules, 1979.
For more detail plz check the website of Overseas Employment Corporation (OEC) https://oec.gov.pk
- Advisory Committee.
Under Section 10 of the Ordinance, 1979 Prime Minister has power to constitute an Advisory Committee.
As per Rule 6 of the Rules, 1979,
(1). Advisory Committee shall advise the Federal Government in formulation of policies on all or any aspect of overseas employment promotion, eradication of malpractices and other related matters.
(2). The Advisory Committee may submit its recommendations to the Federal Government for improvement in the system of overseas employment and the welfare of the emigrants.
- Overseas Employment Promoter (OEP).
S.2 (1)(j)
“Overseas Employment Promoter” means a person licensed as such under section 12.
OEP is a licensed person and will be regulated by the condition of its license.
Power of Secretary of the Division concerned under Section 12 regarding grant of license are delegated to the Director General in pursuance of Section 14. Against the order of the DG Appeal shall lie to the Secretary of the Division concerned.
As per S.9 OEP shall not recruit a citizen of Pakistan or issue an advertisement or publish any material or hold any interview or examination for such recruitment for the purpose of emigration, except with the prior permission of the Director General or the Protector of Emigrants of the area, in accordance with such conditions, if any, as may be prescribed.
That the penal clause regarding the contravention of the provisions of Section 9 is provided in Section 17 (4). Thus the Section 9 is mandatory in nature and not directory.
Rule 18 of Rules, 1979 requires that in any case Foreign Government, appoints an OEP to process its demand of manpower, instead of OEC, then that OEP will be required to apply to DG. DG, after such inquiry as he deems necessary can allow the OEP to process the demand of Foreign Government through the Protector of Emigrants. In case of the private sector demand OEP is required to submit that demand with the Protector of Emigrants under Rule 19 of the Rules, 1979.
In accordance with Rule 20 of the Rules 1979, OEP cannot recruit anyone for Emigration without the permissions for processing of the demands under Rule 18 and 19 of the Rules, 1979.
Under Rule 20A of Rules, 1979, OEP is required the permission of DG, to process the demand, of the foreign employer (whether a government or private sector), in respect of the nominated persons.
In Section 15 it is mandatory for and Emigrant to appear before the Protector of Emigrants, along with his OEP. Section 15 is mandatory in nature and the penal clause of the same is provided in S. 17 (2)(c)
An OEP is a licensed person and will be regulated by the condition of its license. OEPs are also subjected to the provisions/permissions of Section 9,12, 13, 15, 17(2)(c) and 17(4) of the Ordinance, 1979 and Rules 4, 18 to 20A and 21 of the Rules 1979.
- Association of OEP.
Rule 2 (a)
“Association” means Association of the Overseas Employment Promoters.
Rule 24 of the Rules, 1979 further clarifies that OEP with the approval of the Federal Government can form the Association and every OEP shall be the member of the Association.
Association is the Association of OEPs and not the OEC.OEC cannot be the member of Association of OEPs.
- DG Bureau.
Section 2 (a)
“Bureau” means the Bureau of Emigration and Overseas Employment;
Section 2 (f)
“Director General” means the Director General, Bureau of Emigration and Overseas Employment, appointed under section 3, and includes any person for the time being discharging the functions of Director General;
DG appointed under Section 3 of the Ordinance, 1979 is a public servant within the meaning of Section 21 of Pakistan Penal Code, 1860.
As per Section 4, 4B Function of the DG is to regulate emigration, look after the welfare of emigrants, refers the Complaints of the Overseas Pakistani to the Government concerned and any other function assigned to him by Federal Government. Under Rule 3 of the Rules, 1979, DG is also responsible for the administration; of the policies in relation to overseas employment promotion; of Bureau and advise to the Federal Government. DG has to depose of the complaints of Emigrants under Rule 29.
Under Section 11 DG has power to search and detain vessels for the purpose of preventing omission of any offence and shall have the power conferred on the officers of customs by the Customs Act, 1969.
Power of Secretary of the Division concerned under Section 12 are delegated to the Director General in pursuance of Section 14. Against the order of the DG Appeal shall lie to the Secretary of the Division concerned. The Director General may seek review of an order passed in appeal against him under rule 12 within thirty days of such order, under the provisions of Section 13 (3).
- Protector of Emigrants.
Section 2 (1)(L)
“Protector of Emigrants” means a Protector of Emigrants appointed under section 5;
The Secretary of the Division concerned may appoint a person to be Protector of Emigrants and define the area to which the authority of a Protector of Emigrants so appointed shall extend. Every Protector of Emigrants shall be a public servant within the meaning of Pakistan Penal Code (Act XLV of 1860).
As per Section 6 Every Protector of Emigrants (“POE” hereinafter) shall discharge such duties as may be assigned to him by the Secretary of the Division concerned. POE has power to search and detain vessels similar to the DG of the Bureau under Section 11.
Rule 4 of the Rules, 1979 provides details of Powers and duties of Protector of Emigrants. In addition to the duties as may be assigned to him, under section 6, a Protector of Emigrants shall:-
(a) process all demands in private sector of Overseas Employment Promoters according to the procedure laid down by the Director General;
(b) ensure that emigrants fully understand the terms and conditions of employment abroad as given in the Foreign Service Agreement;
(c) inspect the conveyances carrying the departing and returning emigrants;
(d) inquire into the treatment received by returning emigrants during the period of their residence abroad, and return journey, and report findings of such inquiry to the Director General;
(e) aid and advise emigrants, when departing from, or returning to, Pakistan;
(f) submit reports to the Director General on the performance of the Overseas Employment Promoters;
(g) inspect the offices of the Overseas Employment Promoters and the places at which they select persons for emigration;
(h) supervise the work and behavior of the Overseas Employment Promoters in relation to general public and render them such advice as the circumstances may require; and
(i) obtain reports from the Overseas Employment Promoters on such forms as may be specified by the Director General.
Under the provisions of Section 15, before any person emigrates, he shall appear in person, along with the Overseas Employment Promoter by whom he has been engaged or assisted or recruited for employment abroad or his duly authorized representative, before the Protector of Emigrants and furnish to him such information as may be prescribed. The penal clause regarding the contravention of the provisions of Section 15 is provided in Section 17 (2) (c). Thus Section 15 is mandatory in nature and not directory.
Power of the POE regarding Registration of Agreement, Registration of emigration visa holder, direct employment and disposal of complaints, is provided under Rule 21, 21A, 22 and 28 respectively.
- Labour Attaches
Labour Attaches is appointed under Section 7, by the Prime Minister or a person authorized by him, for the purpose of safeguarding the interests of emigrants and promotion of the overseas employment, in a place outside Pakistan and may define his duties.
Under Rule 5, In addition to such other duties as may be defined, under section 7, a Labour Attaché shall:- (a) be responsible for the promotion of overseas employment; (b) be responsible for the welfare of the emigrants; (c) be responsible for safeguarding the interest of emigrants in the host country including settling of the disputes and negotiations with their employers: detail is given in Rule 30;(d) attend to all complaints of the emigrants and find adequate remedy there-for or report to the Director General; and (e) send periodical reports as may be required by the Director General on all aspects of his activities, including labour market trends, inflation and cost of living.
Procedure in case of violation of foreign service agreement by the employer;
In case of violation of any of the terms of Foreign Service Agreement by the employer, as per Rule 27, the emigrant shall lodge a complaint against the employer with the Embassy of Pakistan and forward a copy thereof to the Bureau. On receipt of a complaint the Embassy of Pakistan shall assist the emigrant by persuading the employer to abide by the Foreign Service Agreement, failing which the Embassy shall take up the matter with the local authorities or labour courts to redress the grievances of the emigrant.
The Labour Attaché shall submit a report of such incident to the Federal Government and the Bureau may direct the Overseas Employment Promoter to contact the employer and persuade him to abide by the terms of the Foreign Service Agreement
- Overseas Pakistanis Foundation (OPF) and Welfare Fund.
Rule 2 (gg)
“Overseas Pakistanis Foundation” means the Foundation set up by the Federal Government to be managed by a Board of Governors comprising of the Minister in charge of the affairs of the emigrants and such other members as that Government may from time to time nominate.
Rule 2 (i)
“Welfare Fund” means the fund established under rule 26.
Komal Malik Joyia,
Advocate High Court
0300-4668012
KARLA
House No.88, Main Double Road No.588,
G13/2, Islamabad