Kafala system

The kafala system (also spelled "kefala system"; Arabic: نظام الكفالة‎, romanized: niẓām al-kafāla; meaning "sponsorship system") is a system used to monitor migrant laborers, working primarily in the construction and domestic sectors in Gulf Cooperation Council member states and a few neighbouring countries, namely Bahrain, Kuwait, Lebanon, Qatar, Oman, Saudi Arabia, and the United Arab Emirates (UAE).[1][2]

For kafala in the sense of children's adoption laws, see Islamic adoptional jurisprudence.

The system requires all unskilled laborers to have an in-country sponsor, usually their employer, who is responsible for their visa and legal status. This practice has been criticised by human rights organizations for creating easy opportunities for the exploitation of workers, as many employers take away passports and abuse their workers with little chance of legal repercussions.[3][4]

According to The Economist, "The migrant workers' lot is unlikely to improve until the reform of the kafala system, whereby workers are beholden to the employers who sponsored their visas. The system blocks domestic competition for overseas workers in the Gulf countries."[5]

In Islamic adoptional jurisprudence, "kafala" refers to the adoption of children. The original Islamic law of kafala was expanded to include a system of fixed-term sponsorship of migrant workers in several countries in the late twentieth century. In the first decades of the twenty-first century, the migrant worker system became widely referred to in English as the "kafala system".[6][7]

Bahrain

Repeal

In 2009, Bahrain was the first country in the Gulf Cooperation Council (GCC) to claim to repeal the kafala system. In a public statement the Labor Minister likened the system to slavery.[3] Changes to the Labour Market Regulatory Suggestion were made in April 2009 and implemented starting 1 August 2009. Under the new law, migrants are sponsored by the Labour Market Regulation Authority and can change from one employer to another without their employer's agreement. Three months' notice is required to quit from an employer.[8]

However, in November 2009 Human Rights Watch (HRW) stated that "authorities do little to enforce compliance" with "employers who withhold wages and passports from migrant employees accountable, ... practices [which] are illegal under Bahraini law."[9]

Saudi Arabia

According to a 2008 HRW report,[6] under the kafala system in Saudi Arabia, "an employer assumes responsibility for a hired migrant worker and must grant explicit permission before the worker can enter Saudi Arabia, transfer employment, or leave the country. The kafala system gives the employer immense control over the worker."[1] HRW stated that "some abusive employers exploit the kafala system and force domestic workers to continue working against their will and forbid them from returning to their countries of origin" and that this is "incompatible with Article 13 of the Universal Declaration of Human Rights".[1]

HRW stated that "the combination of the high recruitment fees paid by Saudi employers and the power granted them by the kafala system to control whether a worker can change employers or exit the country made some employers feel entitled to exert 'ownership' over a domestic worker" and that the "sense of ownership ... creates slavery-like conditions".[1] In 2018, France 24 and ALQST reported on the use of Twitter and other online social networks by kafala system employers, "kafils", to "sell" domestic workers to other kafils, in violation of Saudi law. ALQST described the online trading as "slavery 2.0".[10]

Several Indonesian domestic workers were executed in Saudi Arabia during 2015–2018. Siti Zaeneb and Karni were beheaded in April 2015. Muhammad Zaini Misin was executed in March 2018 for having killed his employer.[11] On 29 October 2018, Tuti Tursilawat, also an Indonesian domestic worker in Saudi Arabia, was executed for having killed her employer, an action which she claimed had been in self-defence in relation to sexual abuse.[11] Indonesian Foreign Minister Retno Marsudi lodged an official complaint concerning the execution, which was carried out without warning and despite an appeal against the sentence.[11]

From 1991 to 2019, 300000 Bangladeshi women went to Saudi Arabia under the kafala system.[12] In early November 2019, protests took place in Dhaka in response to the case of Sumi Akter, who claimed "merciless sexual assaults", being locked up for 15 days, and having her hands burnt by hot oil by her Saudi employers. The case of another Bangladeshi, Nazma Begum, who claimed being tortured, also attracted media attention. Both had been promised jobs as hospital cleaning staff but were tricked into become household servants. Begum died in Saudi Arabia of an untreated illness.[12]

On 4 November 2020, as part of its 2030 vision, Saudi Arabia announced a reformation plan for its labor law. Effective on 14 March 2021, the new measures are meant to curb the Kafala system through:[13]

  1. Mandatory digital documentation of labor contracts.
  2. Dropping the stipulation of sponsor consent for exit visas, final exit visas, re-entry visas, and change of sponsor, so long as they are to be applied for after the end of a contractual term or an appropriate notice period previously specified in the contract. Other requirements may still apply in case of applying within a contractual term.

The changes are to be implemented in the Absher and Qiwa portals, both being part of the e-government in Saudi Arabia.[13]

Qatar

About 1.2 million foreign workers in Qatar, mostly from India, Pakistan, Bangladesh, Nepal, and the Philippines, make up 94 percent of the labor force. There are nearly five foreign workers for each Qatari citizen, mostly housemaids and low-skilled workers.

Most of the workers labor under near-feudal conditions that Human Rights Watch has likened to "forced labor".[4] Sharan Burrow, General Secretary of the International Trade Union Confederation, stated "In late 2010 we conducted a risk assessment looking at basic fundamental labor rights. The Gulf region stood out like a red light. They were absolutely at the bottom end for rights for workers. They were fundamentally slave states."[4] An exit visa system prevents workers from leaving the country without the sponsor's permission.[4] Employer consent is required to change jobs, leave the country, get a driver's license, rent a home or open a checking account. Amnesty International witnessed workers signing false statements that they had received their wages in order to have their passports returned.[14] The organization called for an overhaul of the 'sponsorship' system.[14] Arab-American businessman Nasser Beydoun described their situation as: "Foreign workers in Qatar are modern-day slaves to their local employers. The local Qatari owns you."[15] International media attention increased after Qatar was named the host of the 2022 FIFA World Cup.[4][16]

The kafala or sponsorship system practised by GCC nations has been stated as the main reason for abuse of the rights of low-income migrant workers.[17]

Little discussed is the fact that high-income professional expatriate workers are also deeply affected by the abuse of the system by companies. A confounding issue is that many of the companies are based out of western nations from the EU, and the US.[18]

The most typical form of abuse by these companies is the refusal to release employees once their employment has ended with the company. This lack of release (typically through a No Objection Certificate or NOC) restricts employees from moving to another company in Qatar after employment has ended with the present employer.

"This new law may get rid of the word 'sponsorship' but it leaves the same basic system intact. It is good that Qatar has accepted that its laws were fuelling abuse, but these inadequate changes will continue to leave workers at the mercy of exploitative bosses".

—James Lynch, Deputy Director for Global Issues at Amnesty International, on Qatar's 2016 labor reforms.[19]

This prohibition executed by the company will keep the typical employee from working in Qatar for two years beyond the time their employment ended. In worse cases, the company holds the employee indefinitely in an effort to extort money from the employee when business opportunities fail. From the highest executives to the lowest secretaries, this policy is damaging and serves as a constant threat over the employee.[20]

On 13 December 2016, the Qatari government introduced a new labour law which it said would bring "tangible benefits" to workers in the country by abolishing the Kafala system. The new regulations, aimed at making it easier for migrant workers to change jobs and leave the country, came into effect immediately.[21] Amnesty International characterized the reforms as inadequate and continuing to "leave migrant workers at the hands of exploitative bosses".[19]

In January 2020, Qatar issued a ministerial decree that abolished the exit visa requirement that was part of the Kafala system. With the exit visa requirement removed, migrants working in Qatar no longer need to obtain employer permission to leave Qatar. The International Labour Organization described the decree as an "important milestone in the ... labour reform agenda". Human Rights Watch considered the change as insufficient, since the requirement for employer consent for changing jobs and discrimination in permanent minimum wage levels remained, and migrant workers "still [faced] arrest and deportation [for leaving] their employer without permission".[22]

United Arab Emirates

The United Arab Emirates has a work visa sponsorship system to issue work permits for foreign alien nationals who wish to migrate for work in the UAE. Most of the visas are sponsored by institutions and companies. A person looking to enter the UAE for work needs to first procure a work permit from the Ministry of Human Resources. The work permit allows the holder to enter the UAE for employment and it is valid for two months from the date of issue. After the employee enters the UAE on the basis for work, the sponsoring company or institution arranges to complete the requirements of medical testing, obtaining Emirates ID card, labor card and stamping the work residency permit on his passport. The work residency permit on the employee's passport denotes that his legal presence for work in the country is provided by the company he is employed by. After this process, the employee can sponsor his family members and bring them into the country. Per Article 1 of Ministerial Decree No. 766 of 2015, an employee whose employment was terminated because of expiry of his contract can get a new work permit when he wishes to join a new employment. The employee may remain in the UAE on a 6-month job seeker visa to find a new job which will legalize his residency status to work in the country for a longer period. A new work permit is also issued if it is determined that the employer has failed to meet the legal and contractual obligations, including but not limited to failure to pay wages for more than 60 days. A worker may request his contract to be terminated after at least 6 months of employment. A worker whose employer terminated him unfairly is entitled to receive a new work permit without the need to complete six months.[23][24]

The right of alien residence and work permit is protected by the UAE Federal law No. 6 of 1973 on the Entry and Residence of aliens.[25] Per UAE law, an employer may not deny an employee on a work visa right to an annual leave, regular paid wage, 45 days maternity leave, right to resign, resign gratuity, and a 30-day grace period to find a new job. An employer is also prohibited by law to confiscate an employee passport, force the employee to pay for his residency visa fees, or force the employee to work more than 8 hours a day or 45 hours a week without compensation. An employee who wishes to leave needs to complete their legal notice period, which is usually 30 days or less, before leaving their job or risk being banned to work in UAE for up to one year.[26] Alien widows or divorced women whose legal presence in the country was sponsored by their husband's work status are given a 1-year visa to stay in the country without the need for a work permit or a sponsor.[27]

Incident of domestic workers abuse

In October 2014, Human Rights Watch estimated that there were 146,000 female migrant domestic workers in the UAE whose work visa was sponsored by employers in the UAE. In an interview with 99 female domestic workers, HRW listed abuses claimed by their interviewees: most had their passports confiscated by their employers; in many cases, wages were not fully paid, overtime (up to 21 hours per day) was required, or food, living conditions or medical treatment was insufficient. 24 had been physically or sexually abused.[7] HRW criticized the UAE government for failing to adequately protect domestic workers from exploitation and abuse and made many recommendations to the UAE, including repeal or amendment of Federal Law No. 6 of 1973 on the Entry and Residence of Foreigners, so that domestic workers can decide on their own to change between employers without losing their immigration status.[7] The UAE introduced Ministerial Decree No. 766 of 2015, which allows a worker to terminate his contract without losing their immigration status if the employer has treated him or her unfairly and be issued a new work permit, or to request the contract to be terminated without losing immigration status and receive a new work permit after at least 6 months of employment provided they have found a new employer.[23]

The act of confiscating passports is illegal and against UAE law.[28]

UAE Domestic Workers Rights Bill

In June 2017, the UAE adopted a new bill to bring the country's labor law into consistency with the International Labour Organization's (ILO) Domestic Workers Convention, providing migrant domestic workers with the same labor protections as other workers in the UAE.[29] The bill requires employers to provide domestic workers with accommodation and food and provides them with 30 days of annual paid leave and daily rest of at least 12 hours. It also guarantees 15 days of paid sick leave, 15 days of unpaid sick leave, and compensation for work-related injuries or illnesses.[29] The bill sets out a weekly rest day but permits the employer to make the domestic worker forgo the rest day if paid.[29]

See also

References
  1. "'As If I Am Not Human' — Abuses against Asian Domestic Workers in Saudi Arabia (pdf)" (PDF). Human Rights Watch. 8 July 2008. Archived (PDF) from the original on 23 July 2012. Retrieved 23 July 2012.
  2. Khan, Azfar and Hélène Harroff-Tavel (2011). "Reforming the Kafala: Challenges and Opportunities in Moving Forward" Archived 15 December 2019 at the Wayback Machine, Asian and Pacific Migration Journal, Vol. 20, Nos. 3–4, pp. 293–313
  3. Harmassi, Mohammed (6 May 2009). "Bahrain to end 'slavery' system". BBC News.
  4. Montague, James (1 May 2013). "Desert heat: World Cup hosts Qatar face scrutiny over 'slavery' accusations". CNN. Archived from the original on 20 December 2017. Retrieved 20 June 2013.
  5. "The Middle East's migrant workers: Forget about rights". The Economist. 10 August 2013.
  6. "'As If I Am Not Human' — Abuses against Asian Domestic Workers in Saudi Arabia". Human Rights Watch. 8 July 2008. Archived from the original on 23 July 2012. Retrieved 23 July 2012.
  7. "'I Already Bought You' — Abuse and Exploitation of Female Migrant Domestic Workers in the United Arab Emirates (pdf)" (PDF). Human Rights Watch. 9 October 2014. Archived (PDF) from the original on 1 February 2015. Retrieved 1 February 2015.
  8. "Three months after the Sponsorship system in Bahrain was 'scrapped', what really changed?". Migrant Rights. 11 November 2009. Archived from the original on 23 July 2012. Retrieved 23 July 2012.
  9. "Bahrain: Migrant Workers Denied Pay, Right to Travel". Human Rights Watch. 4 November 2009. Archived from the original on 23 July 2012. Retrieved 23 July 2012.
  10. "En Arabie saoudite, des employées de maison sont vendues sur Internet" [In Saudi Arabia, domestic workers are sold on the Internet] (in French). France 24. 13 March 2018. Archived from the original on 28 October 2018. Retrieved 29 October 2018.
  11. "Tuti Tursilawati: Anger in Indonesia after Saudi Arabia goes ahead with execution of maid who killed employer 'in self-defence'". ABC News (Australia). 1 November 2018. Archived from the original on 1 November 2018. Retrieved 1 November 2018.
  12. "'Sexual assaults': Bangladesh seeks worker's return from Saudi". Al Jazeera English. 3 November 2019. Archived from the original on 3 November 2019. Retrieved 3 November 2019.
  13. "Ministry of Human Resources and Social Development Launches Labor Reforms for Private Sector Workers". hrsd.gov.sa. 4 November 2020. Retrieved 28 January 2021.
  14. "Qatar: End corporate exploitation of migrant construction workers". Amnesty International. 17 November 2013.
  15. Morin, Richard (12 April 2013). "Indentured Servitude in the Persian Gulf". The New York Times. Retrieved 17 April 2013.
  16. Pattisson, Pete (25 September 2013). "Revealed: Qatar's World Cup 'slaves'". The Guardian (UK). Archived from the original on 30 July 2017. Retrieved 15 December 2016.
  17. "A comparison of 'kafala' system in GCC; Qatar lags behind on reforms". 17 November 2013. Archived from the original on 16 February 2014. Retrieved 17 November 2013.
  18. "Construction Companies in Qatar Business Directory, News, Tenders". Construction companies in Qatar. Archived from the original on 7 June 2015. Retrieved 17 August 2014.
  19. "Qatar: Migrant Workers Still at Risk of Abuse Despite Reforms". Amnesty International. Retrieved 20 May 2017.
  20. "The kafala system strikes again". 18 March 2011. Archived from the original on 30 May 2015. Retrieved 6 June 2014.
  21. "Qatar introduces changes to labour law". Aljazeera.
  22. "UN body welcomes 'milestone' in Qatar labor reforms". Associated Press. Retrieved 16 January 2020.
  23. "Getting a work and residency permit". UAE Government.
  24. "UAE Amnesty 2018: 6-month visa for violators who seek jobs a golden opportunity". Gulf News. 30 July 2018.
  25. "United Arab Emirates: Overview: Immigration Law of the UAE". Mondaq.com. 2 September 2018.
  26. "UAE Labour Law: 10 facts that you need to know about working in the UAE". Gulf News. 1 May 2019.
  27. Al Shouk, Ali (22 October 2018). "Widows, divorced women can now sponsor themselves". Gulf News. Retrieved 28 January 2021.
  28. The National. "Retaining an employee's passport is against the law". Retrieved 15 August 2018.
  29. Human Rights Watch (7 June 2017). "UAE: Domestic Workers' Rights Bill A Step Forward". Retrieved 15 August 2018.
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