By GANDHI PANDIT
GANDHI PANDIT
In order to promote and encourage Nepali citizens and foreign citizens of Nepali origin residing and doing business abroad, the government of Nepal has recently promulgated Non Resident Nepali Ordinance 2062.

There have been several comments made about this ordinance. It has been said that this ordinance aimed at attracting the foreign investment from non resident Nepalis (NRN) at a time when the foreign investment environment is not seen conducive due to existing violence and Maoist insurgency. It is hoped that after the promulgation of this ordinance, investment by NRN will surge substantially. The media is interestingly highlighting the forthcoming NRN conference to be held in Kathmandu next month.

As this Ordinance grants up to ten-year residential visa to any foreign national of Nepali origin, it is likely to attract foreign investment in Nepal for two reasons; one for helping and assisting Nepal in time of economic crisis by injecting necessary foreign currency liquidity in Nepali economy and second, to exploit the easy access to profit-making ventures, thereby, generating more profit to their investment. It is true that the increase in foreign investment will certainly promote and expand trade and industry, thereby, generating more employment opportunity within the country.

Whether this new Ordinance will be able to provide sufficient legal environment attracting NRN to invest in Nepal has been the main interest of all who have been keeping close eye on this issue. The basic purpose of this article is to analyze and review the pertinent legal provisions of the ordinance.

It is believed that the NRN would invest in Nepal or would be encouraged to invest in Nepal as this Ordinance has recognized following rights and benefits to NRN.

1. The Ordinance has recognized legal existence of NRN and had defined the meaning of NRN.

2. Granting 10-year residential visa to those NRN foreign nationals who invest in convertible foreign currency in Nepal.

3. Permission to Open Bank Account in convertible Foreign Currency:

4. Permission for NRN to invest in convertible foreign currency:

5. Right of NRN to repatriate outside of Kingdom of Nepal the amount received as profit or dividend or any amount received by the sale of share from the company he has invested.

6. Permission to purchase land by NRN foreign national for residential purpose for his or her own uses only.

Does this law really open the door or give more incentive so as to encourage them to invest in Nepal? Has this law provided more opportunity than the existing law to invest in Nepal?

The review of this new ordinance and its comparison with other existing laws relating to NRN indicates that the new Ordinance has failed to introduce any additional concession or benefit that had not been provided in existing immigration law.

The comparison of legal provision relating to NRN:

S/N/ Legal Rights Under existing Immigration Law Under New Ordinance

1. Legal Recognition of NRN Status to Given Given foreign citizen of Nepali origin

2. 10 years residential visa to NRN Available Available

3. Permission to Open Bank Account in convertible Foreign Currency Available Abailable

4. Permission for NRN to invest in convertible foreign currency: Available Available

5. Repatriation of foreign Currency outside of Nepal by NRN Foreign National Available Available

6. Repatriation of foreign Currency Not available Available

7. Permission to purchase land for residential purpose for his or her own uses. Not available Available

The comparison chart above clearly shows what new Ordinance wants to achieve in term of giving more concession or benefit to NRN. We can say that the new ordinance has not granted any additional legal right except recognizing the status of NRN.

This Ordinance has attempted to define the meaning of NRN. NRN ordinance has divided NRN in two categories:

Nepali citizen who resides outside of Nepal exceeding 183 days or more.

Foreign national of Nepali origin.

If we analyze the legal provision minutely, what we find is that this Ordinance actually attempts to provide more concession or benefit to Nepali NRN than to NRN foreign national. This Ordinance does not provide more benefit or concession to foreign national of Nepali origin than it has been provided in existing immigration law. In other words, in the guise of providing additional concession or benefit to foreign citizen of Nepali origin, this law has created a situation in which Nepali NRN retaining Nepali citizenship is allowed to invest in Nepal in convertible foreign currency and shall be allowed to repatriate such investment and any interest or profit accrued from thereon at any time they wish. The Ordinance does not require them to disclose the earning of such foreign currency.

The legal problem not addressed by this Ordinance.

Restriction on Foreign Investment Act 2021 imposed restriction on making any foreign investment outside of Nepal by any Nepali citizen. So if this law is effective, then if you are a Nepali citizen, you are not permitted or allowed to invest in foreign country. The investment term is defined as depositing money in foreign bank or investing in stock of foreign company. Unless this Act is not amended, there shall be conflict among legal provisions – one allowing NRN Nepali Citizen to invest in foreign country and other legal provision prohibiting such investment.

The present Ordinance has attempted to make difference between Nepali citizen earning foreign currency residing outside of Nepal for more than 183 days and other Nepali citizens who earn same foreign currency living within the country. Why Nepali citizen earning dollar income in Nepal not allowed investing in other country? What is the rationale behind the provision that does not allow Nepali citizen residing within Nepal not from making investment in foreign country? Without any rationale basis if we try to treat them differently, this may violate the constitutional provision of equality before law. This Ordinance could be challenged in the court.

The present Ordinance has more focus on the welfare and well-being of the NRN Nepali citizen than the interest and well being of NRN foreign citizen. This ordinance has allowed NRN Nepali Citizen to invest in Nepal and repatriate such investment any time they want. The thrust of this law is to attract NRN Nepali citizens – mostly residing and doing businesses in Eastern Europe and Gulf countries. Therefore, Nepali citizens residing and doing businesses in those countries are more active than the NRN foreign citizens living in the UK, the USA and Canada.

The positive aspect of this Ordinance is that it has given a legal framework and ample opportunity to those NRN who wish to invest in Nepal. We must appreciate those who have been deeply involved in this NRN movement. Their effort and endeavor in bringing this Ordinance is praiseworthy. The government of Nepal also has shown sympathy and positive feeling towards the cause of NRN by promulgating the NRN Ordinance. Now it is the obligation and responsibility of NRN to bring more foreign investment in Nepal. Now they must also think towards not what they can get from their motherland, but what they can contribute to their motherland.