Saudi's Injudicious Nitaqat Implementation

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Apr 26 2013

[The Indian embassy has provided directions for Indian citizens seeking exit here. The Philippines has a produced a FAQ regarding Nitaqat and exit procedures here.]

Migrant Rights commends an op-ed published last week by former Saudi Gazette editor Somayya Jabarti which passionately distills the contradictions and moral contraventions of the Kingdom’s Nitaqat policies. Nitaqat is a Saudization program initially developed in 2011 that prescribes national employment quotas and penalties for non compliant firms. The program's recent reinforcement has led to a massive crackdown on undocumented migrant workers, including those who have either violated the labor law by working for an entity other than their sponsor or those who no longer hold valid residency permits.* Trade Arabia estimates that over 200,000 migrants have been deported since the program's implementation earlier this year.

The program's newly vehement enforcement has cast away a number of Saudi's obligations identified by Jabarti:

1. The inability to transfer sponsorship easily, which the ILO identified as an indicator of forced labor, despite the Ministry of Labor’s assurance that migrants could transfer from noncompliant companies without the sponsor’s approval.

2. The absence of a wage protection system and emergency 24/7 multilingual hotlines for complaints, guaranteed to be implemented before the end of 2011.

3. The enforcement of Nitaqat at its intended time in 2011, which would have prevented mass deportations and allayed the insecurity migrants and employers currently face.

4. The development an English version of the Nitaqat website in 2011. The website remains available only in Arabic, which the majority of migrant workers cannot read. Workers are largely unaware of how Nitaqat affects their rights and their specific situations.

Moreover, Jabarti urges Saudi employers to recognize their legal and moral obligation to migrant workers.

This grace period is addressed to us. Yes it is down and up to Saudis to ensure the facilitation of this modification and legalization…Can we follow this “grace period” to the “T” making it a true period of grace? A period during which we behave or at least attempt to behave gracefully and cooperatively with guest workers — which would hopefully extend into becoming an official premise? Can we?

Importantly, Jabarti underlines that equitable compensation and treatment of migrant workers is not charity, but rather the employer and the state’s legal and moral mandate. Jabarti’s criticisms joins a number of recent regional editorials condemning the pervasive mistreatment of migrant workers.

Unfortunately, Saudi policies fail to echo this consciousness of employers’ legal and ethical obligations to workers; employers who hire undocumented workers, or who effectively force migrants into illegal work situations, do not face meaningful legal consequences. A significant portion of sponsors illegally charge workers employed with another entity to renew residence documents or circumvent quota policies by either falsely registering current employees as “huroob” (runaways) or registering visas under false sponsors. Saudi recently announced that “individuals or companies registering cover-up business” will incur a five year visa ban in addition to pre-established fines, but such penalties are irregularly enforced. In contrast, migrants are severely criminalized, forced to pay high fees, face imminent deportation, and potential detainment. The disproportionate crackdown on migrant workers reflect the highly imbalanced nature of employment relations under the sponsorship system.

Furthermore, migrants do not have the opportunity to redress employer transgressions. To this point, Jabarti asks:

1. “Will all guest workers having to exit the country be paid all their dues in due time?”

2. “What happens to guest workers whose sponsors have wrongly reported them as “huroob” i.e. runaways? How will this be monitored and rectified?”

Under the current framework, employers are effectively absolved of past dues yet migrants must settle any “pending obligations” to employers; in order to obtain exit, migrants must secure a no-objection certificate (NOC) from employers certifying that contractual obligations were fulfilled. However, employers are not required to prove they have paid all wages to migrant workers - despite the prevalence of underpayment which often constitutes migrants’ initial motivation to abscond. Migrants legal status and mobility are made dependent on employers, a consequence that itself fosters undocumented migration. Additionally, no mechanism exists to ensure that employers do not charge migrants exploitative and illegal fees to obtain the NOC or a transfer of sponsorship (for migrant workers not seeking exit.) Not all migrant workers are in contact with their original employer, compounding the difficulty of obtaining an NOC.

An estimated 1,000 undocumented Filipinos camped out near Jeddah consulate. Image from GMAnetwork.com


The NOC requirement is one of several that obstruct repatriation efforts; migrants are also required to pay fines for expired residency permits and for violating Saudi immigration law. The grace period announced by Saudi is not equivalent to previous amnesty periods; the 3 month period permits migrants who no longer work for their original sponsors, or companies that employ migrants not under their sponsorship, to rectify their paperwork but it does not affect "illegal" workers who have absconded from employers or otherwise no longer hold valid residency. In contrast, amnesty periods incentivize repatriation by waiving penalties to undocumented migrants who turn themselves into authorities. Many migrants are unable to afford the fees levied upon them, or otherwise risk returning home penniless and in debt. Migrants either avoid pursuing repatriation or remain stranded unless origin nations are willing to cover fee and ticket costs.

Currently, thousands of stranded migrant workers are languishing throughout Saudi; over 1,000 Filipino migrants are camped outside of a Filipino embassy while 6,000 Sri Lankans took cover under a Jeddah nearby bridge. The Philippines has called on Saudi to waive these requirements, the NOC in particular, in order to expedite the return of these workers. The Indian Embassy has established a hotline to help migrant workers (No. 059681057), an initiative which should be replicated by other representative entities. Origin countries must also allocate more funding to embassies to expediently process the massive influx of exit requests and aid migrants seeking to correct their papers.

Jabarti's piece holds that migrants should enjoy rights to more than “time” to resolve their status. Saudi must uphold its obligations to protect migrant workers from further exploitation by ensuring both regular and irregular migrants have access to legal recourse to equitably settle issues with employers. In accordance with international norms, the Saudi government should also provide an opportunity for undocumented migrants to appeal illegal residency status and to avoid mass deportation schemes. Additionally, the psychological impact on migrants uncertain of the conditions or penalties they will face if detained obliges Saudi to disseminate clear, standardized procedures for Nitaqat violators. Coordination between the Saudi government and sending-country embassies is critical to allaying further transgressions of migrants’ inalienable rights.

*Nitiqat primarily affects migrants who no longer work for their original sponsor and have failed to transfer sponsorship. However, undocumented migrant workers who have absconded from their employers or overstayed their visas and now reside in Saudi illegally are inevitably targeted in labor camp raids or office inspections.

Advancing the rights of migrant workers throughout the Middle East