The Kafala is alive and kicking… migrants where it hurts most
There is a propensity to celebrate every small reform and new labour law legislation as the abolishment of Kafala. When states make that claim loudly, pressing into service all their PR power, the official line is adopted without much criticism or analysis… until the realisation that old, Kafala-esque problems persist. States then buy a little more time to ‘abolish’ Kafala. Once again.
We see this with Lebanon claiming a standard contract for domestic workers is the end of Kafala (which the Shura Council recently rejected). We hear Bahrain hailed for its Flexi Permit system and that it is tantamount to ending Kafala, so much so that it held it’s Tier 1 status for three consecutive Trafficking in Persons (TIP) reports (despite the issues outlined here). Saudi Arabia now claims its abolishing Kafala in 2021, as a next step to the ‘Premium Iqama’ established for high-income foreigners.
By far the most criticised and most praised case is that of Qatar. Since 2014, we have heard Qatar claim it has abolished Kafala. First by renaming it as a contract system. Then by changing some parts of the NOC requirement to change jobs. Then by removing the exit permit in stages. And now finally by doing away altogether with the NOC, allowing workers to change jobs at any point of time.
This piece explores Kafala in Qatar, not because they are the worst offenders, but simply because the most visible work has been done here both by human rights activists and the Government itself, mainly due to the attention brought about by FIFA World Cup in 2022.
While this concerted global advocacy did push Qatar to walk the talk on respecting human rights of migrants, it is equally important to recognise that the country shows unprecedented (in the region) willingness to engage with international NGOs, trade unions and UN agencies. The technical cooperation with the International Labour Organisation and the establishment of a project office has also meant that laws and regulations meet international standards.
The reforms introduced in the last six years are noteworthy and primarily involve the labour law, under the jurisdiction of the Ministry of Administrative Development, Labour and Social Affairs (MADLSA). But any law is only as effective as its implementation. And any law is only as good as the worst laws in the legislative stable – in this case, the ones that govern immigration, under the jurisdiction of the Ministry of Interior (MoI). And in the internal hierarchy of government agencies, the MoI rules the roost.
That the issue of migrant rights is viewed narrowly as only a matter of labour rights is one reason why problems continue. Furthermore, the lack of labour unions, formal civil society, and legal aid make even good reforms not quite meaningful.
To understand why Kafala is still alive, it is important to understand what Kafala is and what it is not. It is a label that is too broad and too sticky to make any real sense for the welfare of migrant workers. Kafala looks different in each of the states where the term is used. The one and only commonality is that the residence and work permits of every single foreign worker is tied to one individual or entity.
The entry into and the right to live and work in the country is controlled by the employer. A migrant worker cannot renew their own residence permit, and this can only be done by the employer. However, failure to do so will penalise and criminalise the worker, who becomes an irregular or ‘illegal’ resident.
What Qatar (like other Gulf states) has done over the years is to bring in relatively strong labour codes that provide minimum standards of working hours, rest periods, entitlements and wages. On paper.
When these minimum standards are not met by the employer there is little or no accountability because workers do not have the wherewithal to tolerate even a little delay in delivery of justice. For the entire duration of the complaints process, migrants continue to be at the mercy of the employer they are complaining against.
This is unfortunate as the processes within the labour ministry are fairly worker-friendly and the online job change platform is simple and accessible. And when cases do go to the labour court, it is invariably settled in favour of workers.
However, at any point during this process, the defendant can file a counter-case against the complainant for a plethora of reasons, none of which requires any real evidence, simply because they can. The worker who has complained is now not only struggling to achieve justice, they must also prove they are innocent of charges that may range from ‘runaway’ or ‘absconding’ to theft or financial fraud.
In 2018, a Ukrainian working in a restaurant at The Pearl Qatar filed a complaint of non-payment. Even as the case was registered, the employer filed a case against him of financial fraud. A basic investigation would have revealed that the worker had no access to the finances of the business and fraud of the nature alleged by the employer would have been next to impossible to commit. But because investigations were not carried out, he was thrown in jail pending hearings at the criminal court.
A good beginning
With the removal of the NOC, workers only need to give their notice to their current employer and apply to change jobs, and both of these steps involve a simple online submission. When each step is completed, the worker receives a notification of approval (see images). This system is truly commendable.
But, because the residence permit is still tied to the employer, the employer will receive a notification of the notice and can immediately cancel the QID or file a case against the worker with a push of a button on the Metrash app. Workers whose QID has expired or been cancelled still have a 90-day grace period to change jobs without incurring overstay fines. However, they will have to now file a separate request for re-validating the QID before applying for a job change.
Workers hesitate to take any step that might annoy their sponsor, who has the power to harass or create trouble for them, which would then require another lengthy process to resolve. The intimidation is not always covert. Most lower-income workers live in highly securitised labour accommodation where their entry and exit is controlled, and when employers get a whiff of a complaint being filed, they are prevented from appearing for hearings or follow-up visits to redress their grievances. This constraint is most pronounced amongst domestic workers whose abusive workplace is their home as well. And to leave it is to risk being reported as 'runaway'. The fear of being forced out of the country and earning a livelihood compels them to endure poor working conditions.
At every step of the way, workers are explicitly and implicitly deterred from filing tedious labour complaints, as nothing is easier than the kafeel filing charges against the workers and rendering them jobless, irregular and entangled in expensive and time-consuming criminal cases.
It is also evident that once a case goes into the jurisdiction of the Ministry of Interior, even if the worker has an active case at MADLSA, the worker is invariably at a disadvantage and faces deportation without the ability to claim their entitlements.
What global advocacy and activism against Kafala have failed to acknowledge is their own gaps in knowledge, and that they didn’t fully grasp the purport of their demands (to abolish Kafala). Unlike slavery, to which Kafala is often equated, the definition of the sponsorship system is not universal. It is experienced and understood differently by people based on their context, nationality and location. So it is time to move away from blanket calls for Kafala reform, but be specific about the practices and laws that are in conflict with universal human rights.
Everything has changed, but nothing has
All this is to say, that after six years since the first claim of abolishment, workers' experiences — based on MR’s interventions and research — remain more or less static.
The Wage Protection System introduced in 2015 still has not succeeded in curtailing wage theft.
Passport confiscation is illegal, yet rampant, and employers are not penalised for doing so.
The Workers’ Support and Insurance Fund established in 2018 still does not reduce the waiting period for workers to recoup unpaid wages, but the circumstances under which the fund is used remains unclear. Furthermore, making it easier to change jobs does not quite loosen the stranglehold employers have over their employees.
Below are a few examples which demonstrate that the lived experiences of workers have not really changed to reflect the reforms of the last few years, and illustrate the unchecked power of the kafeels.
For several months in 2017-2018, 1,200 employees of HKH Contracting Company were unpaid and left destitute. Many employees went back to their home countries empty-handed in desperation. Those who fought a court case received a ruling in their favour in mid-2019. But it was only in the third quarter of 2020 that the ruling was enforced and complainants received their due wages, which did not include compensation for hardship. The company was owned by a member of a branch of the ruling family.
Around the same period, in 2018, 800 workers of Hamton International were left without running water or sanitation, and unpaid for over a year. Two workers died in the labour camp. The company was managed by an Indian partner who fled the country. The Qatari partner, with relatively less influence, was arrested by the police. Workers had to settle for less than what was owed to them in order to change jobs or leave the country.
From 2016 to 2018 Abbie endured long work hours, sexual harassment and mental turmoil, and despite resigning, was not allowed to leave as the employer had threatened to file an absconding case against her and her colleagues. She was terrified of filing a formal complaint as she had little trust in the system.
In 2019-2020, workers of Qatar Meta Coats deployed on a World Cup site were not paid for several months. The workers had filed complaints and exhausted all resources to do so, to no avail. It took a report from Amnesty International for workers to receive their dues. One of the affected workers summarises the crux of the issue: “The company has so much advantage over workers that you regret going to the court. Whatever the company decides, Qatar favours them. Workers are suffering because the companies rule.”
In 2019 about 550 employees of Imperial Trading and Contracting Company stopped receiving their salaries. Complaints filed against the company have done little to retrieve their dues, and the employees continue to wait in vain. Not only did the WPS not flag this issue in time, but the fund that was supposed to help workers in a timely manner has not been used.
Bee arrived in Qatar in 2018 to work as a domestic worker. She faced severe abuse and non-payment. In June 2019 she contacted MR for help, but because she did not have access to a personal phone and because she feared retribution, she could not complain directly to the authorities. In November 2019 she managed to reach the Indian embassy. However, neither the government authorities nor the embassy could convince the employer to return her confiscated passport and pay her due wages. In January 2020, she travelled back home empty-handed on a temporary travel document.
In October 2020 a domestic worker who contacted the police because she was facing sexual harassment at the hands of her employer was rescued and then detained because the employer had filed a runaway case against her. (MR’s report on this case to follow soon.)
In the last seven months, we have witnessed a rise in employers flexing their unlimited power. During Covid-19 lockdowns and business downturn, in order to renege on their obligations to continue paying for accommodation and food, false absconding and theft cases were filed against workers who have no knowledge of the system and how to navigate it.
Unlike MADLSA, the Ministry of Interior (MoI) does not engage effectively with civil society actors. Even embassies, where they are present, have a template letter requesting the release of detained workers or resolution of the case, but the letter does not necessarily expedite the process. For workers who come from countries that do not have a diplomatic presence in the country, their detention could continue for a very long time unless the employer shows some ‘leniency.’
Workers’ rights are not about the labour code and their access to justice is not about the labour systems alone. It is all about who their sponsor is. And that is why the Kafala system, despite reforms, continues to reign.
The more powerful the Kafeel, the less they are held accountable. Given the size of the citizen population and how interlinked the different families are, everyone knows everyone else. While the degrees of power may vary, there’s enough vested in the majority of this small group to intimidate those they employ.