This month, the US State Department will publish its annual Trafficking in Persons Report (TIP Report). The report ranks countries based on their policies and initiatives to combat trafficking. The best-ranked countries are identified as Tier-1 and the worst-ranked as Tier-3. Countries in the latter category could face restrictions on US foreign aid and funds.
The report is a powerful tool to pressure governments to take action against trafficking in persons, despite issues with its methodology, evaluations and role in inducing governments to craft hasty and ill-conceived anti-trafficking programmes. Inaccurate evaluations can risk concealing ineffective and superficial initiatives that do not really to combat trafficking. Law Professor Janie Chuang warns, “Lax application of minimal standards for Tier 1 risks giving governments credit where credit is not due, which only encourages a deleterious complacency from which governments can easily backslide into inaction”.
The case of Bahrain demonstrates such an example. While Bahrain’s recent reforms have been a step in the right direction, the realities on the ground are at odds with the qualifications for TIER-1 status.
Bahrain achieved Tier-1 Status for the first time in 2018 and maintained this status in 2019. Government officials and local media widely celebrated this achievement. The Bahraini government, media and even international organisations like the International Organisation for Migration (IOM), inaccurately claimed that this was the first time an Arab state reaches Tier-1 status. In fact, the UAE controversially first reached Tier-1 status in the 2003 TIP Report.
According to the 2018 TIP Report, the main reasons for upgrading Bahrain to Tier 1 status were:
- The launch of the Flexi-Permit
- The first conviction of a Bahraini national for forced labour and the first conviction of a complicit government official
- Enacting Standardised Tripartite labour contract system for domestic workers
- Establishing the National referral mechanism to identify and protect victims of Trafficking
- Expat Protection Centre to provide legal assistance, 24/7 help and shelter victims of Trafficking
- Anti-trafficking campaign to educate migrant workers about their legal rights
- Victims assistance fund to cover the cost of essential services for victims of Trafficking
- Participating in regional UNODC training and building capacity centre, to build local and regional knowledge to combat human trafficking
Bahrain retained Tier 1 status in 2019 for the same reasons.
Some of these initiatives have been limited in their practical application. Often, they fail to adequately support victims of trafficking, and in particular, victims of forced labour.
Flexi-Permit was hailed in the 2018 TIP report as “a concrete step to reform the sponsorship system by introducing a program to allow some undocumented workers to self-sponsor.” The report incorrectly claimed that “successful applicants can work any job with any employer on a full or part-time basis.” However, not all job sectors are eligible under the Flexi-Permit scheme, including those which require special permits such as medical, engineering, law and teaching professions.
Delinking migrant workers from the control of a single sponsor is an important move but as our previous assessments of the scheme noted, lack of clarifications on the rights and responsibilities of stakeholders, as well as steep fees, prevent the scheme from functioning as a viable alternative to the sponsorship system. In fact, a poorly executed Flexi-Permit scheme without associated reforms to improve labour rights has resulted in reduced labour protections for workers.
The Flexi-Permit designed to regularise irregular workers, and primarily benefits the employer by lowering or eliminating the cost of hiring migrant workers. It does not hold those employers who were responsible in the first place if the irregularity were forced upon the worker.
Flexi-Permit holders must bear the cost of their work permits and all their expenses, without sufficient safeguards of their labour rights. The structural deficiencies of the sponsorship system are not rectified through this new initiative. And now with the COVID-19 crisis, Flexi-Permit holders are even more vulnerable as job opportunities dry out, and they are responsible for their own food and housing expenses. For the scheme to be a genuine reform of the sponsorship system it needs to adopt the recommendations put forward in our previous assessment.
The Standardised Tripartite labour contract for domestic workers
The standardised contract system launched in 2017 obligated all recruitment agencies in Bahrain to declare, among other things, the nature of the job, work and rest hours and weekly days off.
The 2019 TIP report incorrectly states that the “Labor Law No. 36 of 2012 established some protections for domestic workers, requiring employers to provide a labour contract specifying working hours…” However, this is not the case, as domestic workers are excluded from the provisions of Title Seven of the Labour law, which specifies working hours.
As noted in our previous assessment, “the new contract does not lay out any new mandatory working conditions. It remains up to the employer to determine the working hours, minimum wage, and rest time – factors which should be regulated by law.”
In fact, Bahrain lags behind other GCC countries (except for Oman) when it comes to enacting labour rights legislation for domestic workers. Kuwait (2015), Qatar (2017), UAE (2017), and Saudi Arabia (2013) have all enacted laws specifically for domestic workers. While the ideal is complete inclusion of domestic workers in the labour law, most of the GCC states nonetheless provide greater protections for domestics workers than Bahrain.
The standard contract also lacks strong enforcement mechanisms, and widespread non-compliance is evident in data collected by the Migrant Workers Protection Society (MWPS); only one woman who entered the MWPS shelter in 2018 reported going through the contractual procedures, and field investigations of recruitment agencies revealed that many agencies did not, or only partially, complied with the contract regulations.
Above all, Bahrain’s Labour Market Regulatory Authority (LMRA) still allows employers to hire domestic workers directly, and as per LMRA’s website, those who hire domestic workers directly do not need to provide a standard contract. They only have to sign “a pledge of the employer's obligations towards the domestic worker…” which renders the initiative limited and provides a channel for employers to hire domestic workers via irregular agents.
The National Referral Mechanism, Expat Protection Unit, Anti-Trafficking Campaigns
In 2017, Bahrain launched the National Referral Mechanism (NRM) procedure used to identify and support victims of trafficking. However, the procedure is geared primarily towards victims of sex trafficking and not forced labour. According to the 2019 TIP report, Bahrain referred only one forced labour case for the prosecution.
MWPS also documented several cases which amount to unpaid forced labour, but which were not considered so by the authorities. Social workers in Bahrain also reported that police in Bahrain are poorly trained to identify and support victims of abuse and trafficking. While domestic workers are the most vulnerable, migrant workers in other sectors also face what amounts to forced labour. For example, in the case of G.P Zachariades that MR previously reported on where both company and government officials encouraged workers to continue to work without pay. Under Bahrain’s own trafficking definitions, these actions are tantamount to forced labour, but authorities have so far only treated the case as a labour violation.
Furthermore, Bahrain’s LMRA, which leads The National Committee for Combating Trafficking in Persons, provides little protection for those who are trafficked through visit visas. As the LMRA, is a labour regulatory authority, it only concerns itself with those with work visas, while visit visas are under the authority of Nationality, Passports and Residence Affairs (NPRA). The case of Cameroonian Lukong Pascaline who was trafficked in Bahrain demonstrates this point. (see sidebar)
The LMRA’s Expat Protection Unit (EPU), which is praised in the TIP reports, has run a shelter since 2015 with a 120-bed capacity. But according to on-ground sources, this capacity is rarely met. The shelter does not accept workers who have on-going labour disputes unless the worker is referred by their embassy or police, or involved in sex trafficking issue. Cases that amounted to forced labour by social workers were routinely not accepted by the EPU. In 2018, more migrant women were sheltered in MWPS shelter (which is now closed) than in the LMRA’s shelter.
The 2019 TIP report itself reports that the government did not routinely investigate unpaid wages, passport confiscation and related abuses as indicators of trafficking, but dealt with them as administrative violations.
The TIP report has praised other Gulf countries for implementing and monitoring the Wage Protection System (WPS), however, Bahrain remains the last GCC country to adopt a WPS. The implementation of WPS in Bahrain has been delayed several times since its announcement. The WPS is currently in an experimental phase with larger companies. And with the ongoing COVID-19 crisis, its implementation might be postponed even further, not to mention that wage thefts have been increasing.
Trafficking for sex work
Bahrain’s anti-trafficking policies and discourse conflate sex work and trafficking in a way that disregards the human rights of sex workers. It focuses mostly on criminalising both sex trafficking and sex work, rather than addressing the vulnerabilities faced by sex workers and the protection they need.
Although prostitution is prevalent in Bahrain, the legal code criminalises it and sex workers are arrested, jailed and/or deported.
This is not to say that sex trafficking is not a problem, on the contrary, social workers in Bahrain have documented several cases of migrant women trafficked to Bahrain believing they would work as a masseuse only to be forced into sex work or cases of ‘absconding’ domestic workers forced into prostitution. But any anti-trafficking policy must clearly delineate between sex work and trafficking, and should clearly remove any penalisation of the worker themselves.
Overwhelming data and studies show that sex workers are rendered vulnerable and subjected to more violence wherever prostitution is criminalised. Criminalisation creates barriers for sex workers’ to report any violence they experience and reduces their safety and bargaining power and their access to justice, as they fear arrest and deportation.
Furthermore, the TIP report is not ideal for evaluating government action against sex trafficking. According to a policy brief by the Global Network of Sex Work Projects, “The TIP report has consistently ignored harms to sex workers, including arrest and deportation of sex workers, abuse and violence during raids, increased vulnerability to violence, and increased stigma and discrimination resulting from trafficking legislation and initiatives.”
Bahrain must decriminalise all aspects of sex work, involve sex workers in the development of anti-trafficking policy and legislation, and cease to conflate trafficking and sex work and follow recommendations set by the Global Network of Sex Work Projects.
No country with Kafala System deserves a Tier 1 status
Bahrain is the only country in the Tier 1 rankings with a labour migration system based on Kafala.
Fundamentally, a migration system that ties a migrant worker’s residency and legal status to a private local citizen renders the former vulnerable to entrapment and abusive employment conditions that could amount to forced labour and gives the latter the unilateral power to control the status of residency permits.
This system also allows citizens to trade in residency or work permits through the selling of visas to migrants who wish to arrive and reside in Bahrain. According to a recent study by Bahraini economist Dr Jaafar Al-Sayegh, a local sponsor who trades visas in Bahrain can earn an average of 1,450 BHD (USD 3,839) for issuing a visa and BD 800 (USD 2,118) for renewing it every two years.
According to Al-Sayegh, if a sponsor sells 100 visas to migrants, he or she can extract BD 145,000 (USD 383,940) from them in the first two years without any effort on part of the sponsor.
Under such arrangements, the employer can unilaterally cancel the visa after selling it to the migrant, rendering the migrant irregular and vulnerable to abuse. Any serious effort to combat trafficking must include the end of the sponsorship system which enables the trading in visas and persons.
It is likely that Bahrain will retain its Tier-1 status, given that the LMRA has recently launched a new unit to assist migrant workers in filing complaints against employers. Just like other Gulf countries, Bahrain rarely walks the talk, and there are huge gaps in both policy design, and between intent and execution. It is these gaps that need to be analysed, before showering accolades.