Between regular and irregular employment: subverting the kafala system in the GCC countries

Abstract

The focus of this paper is on the strategies of migrant workers and employers to circumvent or subvert the kafala (sponsorship) system in the Arab Gulf States. While the kafala system provides individual and corporate sponsors with both near-exclusive power and legal responsibility for their employees, a range of informal practices has emerged, among them is the so-called ‘free visa’. We argue that the irregularities analysed in this paper are one aspect of the broader frictions between the restrictive kafala system and the need for a more flexible labour force in most Gulf States. Furthermore, both the migrant’s and the employer’s sides must be considered in order to understand the sustainability of these alternative practices, which often are at the margins of the law, and thus entail a number of risks for both parties. Finally, we draw attention to the fact that many employers are non-nationals, and that their perspectives and interests may differ from those of nationals.

Keywords:

• Irregular employment
• migrant strategies
• kafala
• United Arab Emirates
• Qatar

Acknowledgment

A preliminary version of this paper was prepared for the workshop ‘The Role of Legislation, Policies and Practices in Irregular Migration to the Gulf’ at the 2015 Gulf Research Meeting. We thank the workshop participants and the anonymous reviewer of the journal for their insightful comments.

Notes

1. For labour migration patterns to the Arab Gulf before the oil boom in the 1970s, see Erichiello, 2012; Fuccaro, 2010; Seccombe & Lawless, 1986.

2. For the shift from Arab to Asian workers, see e.g. Frantz, 2017; Kapiszewski, 2006; Oommen, 2014. For the integration of workers from Africa, see e.g. Fernandez, 2017; Malit & Tchiapep, 2013; Pelican, 2014, 2015; Tchiapep & Malit, 2014.

3. Calculation by the authors on the basis of source data by the United Nations, Department of Economic and Social Affair, Population Division, International Migration Report 2015: Highlights (New York: United Nations 2016), (ST/ESA/SER.A/375), Annex pp. 28–32.

4. Information derived from De Bel-Air, 2017, p. 39; Fargues, 2017, p. 18; Shah, 2014, p. 7. However, estimates differ slightly between authors, depending on their source of data.

5. For the case of Indians in Saudi Arabia, see Rajan & Joseph, 2017.

6. Taha, S. M. (2017, June 5) Saudi Arabia. Over 345,000 illegal expats leave kingdom under amnesty program. Arab News. Retrieved from http://www.arabnews.com/node/1110186/saudi-arabia.

7. For example, in the Saudi Arabian labour law the term ‘ummal (worker) is used to refer to the foreign labour force. The same applies to the labour law in Bahrain. Cf. Wizarat al-‘amal. Al-mamalaka al-‘arabiyya al-sa’udiyya: Nizam al-amal. 1436/2014. Retrieved from http://www.laboreducation.gov.sa/Public/download/LaborLaw.pdf. Hai’at Tanzim suq al-amal: Qanu al-amal. 2012. Retrieved from http://lmra.bh/portal/files/cms/downloads/english_attachment/Updated_Labour_Law_2012_20120808105940.pdf.

8. Valenta (2017) compares migration systems and policies in the GCC and the EU. He argues that while the GCC countries offer opportunities to larger numbers of temporary labour migrants, they are highly restrictive in view of acquiring permanent status or citizenship than the EU member states.

9. On the production of irregularity in the Gulf, see also Fargues, 2017; Fargues, De Bel-Air, & Shah, 2015.

10. All interlocutors have been anonymized.

11. For legal changes in Qatar and the UAE, see e.g. Mednicoff, 2012; Zahra, 2014.

12. Due to international pressure related to Qatar’s hosting of the World Cup in 2022, the Qatari government embarked on a reform of its labour regime. In December 2016, law No. 21 of 2015 was put into effect with the aim of ending the kafala system. Human Rights Watch criticizes, however, that while the new law refers to ‘recruiters’ rather than ‘sponsors’, it does not eliminate the potential for exploitation embedded in the kafala system. See: https://business-humanrights.org/en/qatar-labour-reforms-come-into-effect-commentators-warn-change-is-insufficient; https://www.hrw.org/news/2016/01/27/qatar-failing-crucial-labor-reforms. Diop, Al-Ghanim, Le Trung, Johnston, & Ewers, 2017 reviewed citizens’ attitudes toward migrant workers in Qatar which affect policy reforms.

13. For example, in the UAE, the minimum monthly salary to sponsor a housemaid is 6000 AED (June 2015), which is equivalent to 1600 USD Government of Dubai (2015, July 8). ‘Sponsor a Maid or Nanny in Dubai. Retrieved from http://www.dubai.ae/en/Lists/HowToGuide/DispForm.aspx?ID=45.

14. For UAE labour laws see: http://www.mol.gov.ae/molwebsite/en/labour-law/labour-law.aspx.

15. See online reports, e.g. Qatar to implement wage protection system; doesn’t fully address workers’ needs.,’ migrant-rights.org, 26 February, 2015. Retrieved from http://www.migrant-rights.org/2015/02/qatar-to-implement-wage-protection-system-doesnt-fully-address-workers-needs/; Exchange houses to avoid wage protection system. The Peninsula. 25 February, 2015. Retrieved from http://thepeninsulaqatar.com/news/qatar/323742/exchange-houses-to-adopt-wage-protection-system.

16. As will be shown later, the same can also apply to employers, and is reflected in numerous discussions in social media.

17. See: Depaak (2017, March 17). All about absconding! Emirates Diary, UAE Labour Law. Retrieved from http://emiratesdiary.com/uae-labour-law-2/absconding. For further details of the procedure see: Al-Imarat al-arabiyya al-muttahida. Wizarat al-dakhiliyya: Tasjil Balagh al-hurub. Retrieved from https://www.moi.gov.ae/SD/ar/ServiceDirectory/View/1c7f2e4a-f6a5-4e99-9a46-3e3f94df5317. See also Ashish Meta (2016, February 2) Employer can list you as absconding if resignatiojn letter is nit given. Khaleej Times https://www.khaleejtimes.com/legalview/employer-can-list-you-as-absconding-if-resignation-letter-is-not-given.

18. ‘MoI calls for use of Metrash 2 for complaints on absconding workers’ Hukoomi – Qatar e-Government, 13 August 2014. Retrieved from http://bit.ly/1LWusUa. See also Jureidini, 2017a, pp. 146–147.

19. Cf. Nammour, M. (2017, January 28) ‘Absconding maids and domestic helps are often caught’. Khaleej Times. Retrieved from https://www.khaleejtimes.com/article/20170128/ARTICLE/170129105/1002.

20. For details see Damir-Geilsdorf, 2016, pp. 173–176.

21. For example, an Emirate employer, who has two live-in maids and a driver and who was well-travelled and open-minded, told us that he provides his maids with mobile phones and a SIM card. However, he is afraid that they could use it for immoral things, like ‘starting a love affair with the Bengali cleaner next door’. Therefore, the maids are only allowed to use the phones on the weekend and in his presence, so he can monitor their communication (Interview with Hasan, Dubai, March 16, 2014). Several studies indicate that housemaids are frequently prohibited from leaving the house, or have no room or even bed to rest but have to sleep on the floor next to the children of their kafeel (e.g. Amnesty International, 2013; Vlieger, 2011).

22. Interview with POLO officer, Dubai, March 13, 2015.

23. On attempts to regulate the operations of intermediaries in the case of migration from Ethiopia to the Middle East, see Fernandez, 2013.

24. Interview with Amar, Doha, November 8, 2014.

25. Similar findings have also been reported by Gardner, Pessoa, & Harkness, 2013, pp. 9–10; Jureidini, 2014, p. 64. For a review of migration trends policies of South Asian sending countries (including Nepal), see also Wickramasekara, 2016.

26. See United Nations, General Assembly, Human Rights Council (2014, April 23). Report of the Special Rapporteur on the human rights of migrants François Crépeau. Addendum: Mission to Qatar. A/HRC/26/35/Add.1, 9. See also Shah, 2008, p. 18.

27. A detailed analysis of the workings of the ‘free visa’ is provided by Jureidini with regard to Qatar (Jureidini, 2017a, pp. 145–150). For the UAE see Mahdavi, 2011; for Kuwait Shah, 2000.

28. Especially for low-skilled and semi-skilled workers, the recruitment costs paid in advance often lead to forms of debt bondage. For a more detailed argument, see Damir-Geilsdorf, 2016. For a detailed analysis of the case of Bangladeshi migrants’ indebtedness, see Moniruzzaman & Walton-Roberts, 2018.

29. For example, Nepalese workers interviewed by Amnesty International in Qatar typically owed around 1150 USD when they arrive, borrowed at an interest rate of 36% per annum (Amnesty International, 2013, p. 34). Rahman, who conducted a survey among Bangladeshi migrant workers in Saudi Arabia found out that most of them paid migration costs of around 3000 USD, often funded in parts through moneylenders in Bangladesh with seven to ten percent interest per month, roughly 100 percent per year. Comparing the repayment of migration loans with the amount of remittances and wages, he found out, that it takes Bangladeshi migrants in Saudi Arabia on average 2, 3 years to recover the financial costs of migration (Rahman, 2011, p. 404).

30. Research in Dubai was conducted in 2008, 2011 and 2014. The following information is focused on the period between 2008 and 2011.

31. This is the current rate for overstaying a tourist or visitor’s visa. Different rates apply to overstaying a residence or employment visa: 25 UAD/day (7 USD) for the first six months, 50 UAD/day (14 USD) for the subsequent 6 months, 100 AED/day (27 USD) after one year. http://www.visaprocess.ae/details.php?page=fines (last visited 20.11.2017).

32. Salama, S. (2013, November 13). Two-month Amnesty to Illegal Residents. Gulfnews.com. Retrieved from http://gulfnews.com/news/gulf/uae/visa/two-month-amnesty-to-illegal-residents-1.1104133.

33. Salem, O. (2013, June 5). 12,000 illegal workers caught since UAE amnesty ended. The National UAE. Retrieved from http://www.thenational.ae/news/uae-news/12-000-illegal-workers-caught-since-uae-amnesty-ended.

34. The term has also entered the realm of public culture, as reflected in several pop songs that have been circulated over social media in Bangladesh, India, and Pakistan. See e.g. http://ravoof.com/the-best-of-why-this-kolaveri-di-the-wold-famous-viral-song/; https://www.facebook.com/pakistanipolice/videos/10151588948423146/; https://www.youtube.com/watch?v=-iE8YtHa4QQ; ; https://www.facebook.com/notes/faez-choudhary/why-this-khalli-walli-song-lyrics-%D9%83%D9%84%D9%85%D8%A7%D8%AA-%D8%A7%D9%84%D8%A3%D8%BA%D9%86%D9%8A%D8%A9-%D8%AE%D9%84%D9%8A-%D9%88%D9%84%D9%8A/10150480076652334 (last visited 17.11.2017). Some went viral and resulted in remakes subtitled in English, many of which are also popular among West African migrants in Dubai. Furthermore, a ‘Khalli Walli’ pop song, dedicated to migrant workers and praising their vital contribution to Dubai’s multicultural society, was used as a marketing strategy by the private company UAE Exchange. (Available at https://www.youtube.com/watch?v=pa4z34-ceHM, last visited 17.11.2017). Concurrently, Saudi Arabia responded to the ‘Khalli Walli’ media hype by producing a state-sponsored ‘Khalli Walli’ comedy show, aimed at alerting potential migrants to the dangers of illegal migration. See: Hasan, R. (2014, May 21). The ʻKhalli Walliʼ show: Comedy for awareness. Arab News. Retrieved from http://www.arabnews.com/news/574121.

35. Shah found in her research that in the UAE in 2008 Indians on average had to spend 7.500 AED (2.042 USD) for a ‘free visa’ and Iranians almost double the price (Shah, 2008, p. 9).

36. See e.g. Abid, A. (2013, August 17). Bara’a muttaham min jarimat zina ma’a imra’a muta’addid al-‘ilaqat.’ Al-Imarat al-Yaum. Retrieved from http://www.emaratalyoum.com/local-section/accidents/2013-08-17-1.598775. See also Amnesty International, 2013, p. 8; Mahdavi, 2017, p. 191.

37. Unfortunately, we lost contact with Ann, and do not know which of the three possible avenues she had outlined, she eventually realized.

38. In Dubai, the minimum salary of domestic workers, as defined by sending countries, varies between 800 and 1,400 AED (218–381 USD) per month. See: The Government of Dubai. (2015, July 8). Sponsor a Maid or Nanny in Dubai. Retrieved from http://www.dubai.ae/en/Lists/HowToGuide/DispForm.aspx?ID=45.

39. Quoted from:http://www.expatwoman.com/dubai/monthly_home_garden_Maid_Rules_and_Regulations_Dubai_8826.aspx (last visited 27.12.2017).

40. Quoted from: http://www.expatwoman.com/dubai/monthly_home_garden_Maid_Rules_and_Regulations_Dubai_8826.aspx (last visited 27.12.2017). See also: Tesorero, A. (2017, January 29). Problems you can face when hiring a maid in UAE. Khaleej Times. Retrieved from https://www.khaleejtimes.com/nation/dubai/are-reliable-housemaids-tough-to-get-in-uae.

41. We thank the anonymous reviewer of the journal Migration and Development for her/his insightful comments informing this section.

42. Za’za’, B. (2014, May 12). 15-year jail for woman who tortured maid to death. Gulf News. Retrieved from https://gulfnews.com/news/uae/courts/15-year-jail-for-woman-who-tortured-maid-to-death-1.1331538. More recent instances include, for example, the case of a Qatari woman and her daughter in the UAE, who were sentenced to 1.5 years of imprisonment and deportation for torturing their Filipino maid to death, while the husband was sentenced to 3000 AED (817 USD) for holding back information about the case. As the news report argues, the sentence was relatively low because the perpetrators also paid 400,000 AED (approx.109,000 USD) as diya (literally ‘blood money’), i.e. financial compensation paid to the victim of murder in Islamic law Abdalhakim, M. (2018, January 30). al-Jaish sana wa-6 ashur wa-l-ib’ad ‘inda Qatariyya wa-ibnatiha bi-tuhmat ta’dhib khadima hatta l-mawt fi Kalba’. al-Ru’ya. Retrieved from http://www.alroeya.ae/238148/. Conversely, a Lebanese-Syrian couple who killed their Filipino housemaid while living in Kuwait were sentenced to death in their absence; a considerably severer judgement, which may partly be attributable to the fact that the perpetrators were foreigners. See: al-Khalij Unlayn (2018, April 1). al-Kuwait. Mahkamat al-jinayat: al-I’dam ghiyaban li-wafid lubnani wa-zawjatihi al-suriyya ba’d qatlihima khadima filibiniyya. Retrieved from http://klj.onl/7rXOL; BBC (2018, February 24). Joanna Demafelis: Employers of Filipina maid found dead in freezer arrested. Retrieved from http://www.bbc.com/news/world-middle-east-43177349.

43. In an interview published by Doha News in 2014, Gardner emphasized the Qatari government’s receptiveness to the advice of researchers on migrant issues; the same does not apply to other Gulf States (e.g. the UAE). See: Kovessy, P. (2014, December 9). Punish employers who don’t pay workers, researcher to tell Qatar gov’t. Doha News. Retrieved from https://dohanews.co/punish-employers-dont-pay-workers-researcher-tell-qatar-govt/.

44. Interview with POLO officer, Dubai, March 13, 2015.