Nepal Police are expected to exercise more caution before arresting foreign nationals on the country’s soil following the Supreme Court’s (SC) mandamus order against the Department of Immigration’s (DoI) decision to ‘arbitrarily’ detain a Dutch national.

On August 17, a joint bench of justices Prakashman Singh Raut and Hari Prasad Paudyal had issued the order to release Dutch citizen Amadeu Candido De Oliverira (as spelled in the court document) from jail. The court reasoned that he could not be detained without hiring a translator to record his statement in the presence of the attorney general.

After the order, the DoI sent a letter to the Sundhara-based Department of Prison Management on Sunday to recall the Dutch citizen to the DoI.

“We got the Supreme Court’s order on Friday. Based on that, on Sunday we wrote to the Sundhara-based jail department, asking them to send him back to the immigration department,” said Khimraj Bhusal, the DoI spokesman.

But an officer at the Department of Prison Management said his office had not heard from the immigration office till Monday. “Oliverira is one of the oldest foreign prisoners among the 18 inmates sent by the immigration office. We have not received any letter from the immigration office yet,” said Lalit Kumar Basnet, the jailer at the Central Jail, Sundhara.

When the Post contacted the Nakkhu prison, it found three inmates sent there for overstaying their visas.

Jailor Basnet said, of the total 258 foreign inmates in his jail, 18 were sent by the immigration department for overstaying their visas after they could not pay the fines.

Legal experts say sending foreign inmates to jail without hiring translators and without providing them lawyers is against the International Covenant of Civil and Political Rights (ICCPR) 1966.

Advocate Ananta Raj Luitel said Nepal has been violating Articles 12, 13, 14 and 15 of the ICCPR by detaining foreigners without providing them legal and language support. “This is a gross negligence of human rights, and happening due to the negligence of our authorities,” said Luitel.

The ICCPR 1966 is a multilateral treaty that commits nations to respect the civil and political rights of individuals including the right to life, freedom of speech including other basic fundamental rights of the citizens of any country.

Article 14 of the ICCPR states that an inmate should have adequate time and facilities for the preparation of his/her defence and to communicate with counsel of his/her own choosing. It also states that a foreigner should be given an interpreter if he/she cannot understand or speak the language used in the court.

“The Supreme Court’s decision is commendable and will help improve things. At the least, this vital issue has got some kind of legal hearing,” said Luitel. He says following the Supreme Court’s verdict, police will be more careful before detaining foreign nationals on Nepali soil.

When the Post questioned immigration officials, they said the Dutch national would have been deported had he had paid the fine for overstaying his visa.

“But the Supreme Court has not said anything about the fine the inmate needs to pay based on the DoI law,” said Bhusal.

Oliverira had been ordered to pay Rs1.5 million for visa fee and fines for overstaying in Nepal. After he said he was unable to pay the said amount, the DoI sentenced him to prison for seven years starting October 23, 2019.

Nepal’s immigration law states that a foreigner staying longer than allowed by his/her visa needs to pay $3 a day for a visa and an additional $5 a day in fines.

Officials at the immigration department are unsure about what to do with the Dutch citizen if he cannot pay the fees and fines. Also, officials seemed confused about the mandamus order issued by the court.

“There are also a few others in the prison like him. Regarding those who cannot pay the fines and were sent to prison without consulting an attorney, we now need to consult the Ministry of Home Affairs,” said Bhusal.

The DoI, however, could not give the actual number of inmates it sent to the prison for their failure to pay the fines.

“Most of those sent to prison pay the charges within a few months and we deport them,” said Bhusal.

According to the Department of Prison Management, there are 1,381 foreign inmates in 74 prisons across the country.

After Oliverira's case, officials at the DoI have said that there is now a high likelihood of the police hiring a lawyer and a translator before sending the foreigners violating visa rules to prison.

Oliverira himself had filed a writ petition at the apex court. The Dutch citizen first came to Nepal in 2014, and he was on a regular tourist visa until May 30, 2015.

Oliveria worked as a football coach with the Kaski District Football Association back in 2017.

As per the DOI’s case against him, he had been staying in Nepal without renewing his visa from May 30, 2015 to October 23, 2019.