The Flexi Permit Experiment: No Kafala, but poor labour practices persist
Strong, inclusive labour codes and implementation mechanisms are needed to protect rights of migrant workers
The Kafala system is routinely and rightfully condemned as the root cause of most abuses that migrant workers in the Gulf face. As the main form of governance of migrant workers, the Kafala, or Sponsorship, system ties migrant workers’ residency to sponsors, contractually binding the former to the latter to maintain his or her “legal” status.
Under the Kafala, employers have the power to issue and renew migrants’ work permits and cancel them at any time. In general, employers also have the right to restrict workers' job mobility and to file “absconding” cases against migrants who leave their work without permission. The power imbalance embedded within the system renders many migrants vulnerable to systemic and structural violence.
For a number of reasons, each Gulf country has recently reformed some aspects of the Kafala without abolishing it completely. However, Bahrain’s Flexi-Permit scheme stands out as the closest to “abolishing Kafala” for some lower-income migrants. Introduced in 2017, the Flexi-Permit allows migrants with irregular status to “self-sponsor,” meaning they are no longer dependent on an employer for their residency. Though migrant workers must have a sponsor to enter the country, all other controls employers hold under the Kafala system are technically relinquished: A Flexi-Permit worker can change jobs as he or she wishes, without their employer’s consent. Employers of Flexi-Permit workers are not able to file absconding cases against them and, given that the Flexi-Permit holder is solely responsible for renewing his or her permit, the employer has no reason (or access) to confiscate a worker’s passport.
According to the latest reports, around 57,000 workers have signed up for a Flexi-Permit, and the scheme has been hailed by international organizations as the most important step towards protecting workers’ rights in the region.
As discussed previously, the Flexi-Permit was introduced in part to undermine Free Visa arrangements (visa trading), by allowing some migrant workers to pay the state instead of individual sponsors for their residency. But linking migrant workers’ residency to the state – technically “abolishing Kafala” – makes little difference for migrants when their relationship to the state is based on rent-seeking activity, and where the workers’ ‘legality’ is based on their ability to pay to the state. Flexi-Permit fees add up to roughly BD 792 (USD 2,100) a year – more than twice what employers pay the government to issue a regular work permit for migrants.
Unsurprisingly, many Flexi-Permit workers who Migrant-Rights.org spoke to recently revealed that they much prefer to have a sponsor who would pay for their residency permit rather than paying for it themselves, even if that means returning to the mercy of their sponsors under the restrictive Kafala arrangement.
S*, an Ethiopian waitress who works at a restaurant in Manama says that she has been trying to find an employer to sponsor her visa for over a year, without any success. “The problem is that wages are very low and anything I make goes to LMRA, I am not saving anything.” Recently, S* lost her income due to the pandemic and was unable to pay Flexi-Permit’s monthly fees. She now has an irregular status.
According to reports, more than 12,000 Flexi-Permits have been cancelled since the scheme started, most likely due to lack of payment. Given the austere conditions of Bahrain’s private sector, migrant workers continue to work and live in bleak conditions even when their visas are tied to the state.
But the high costs of the Flexi-Permit is only one aspect of the problem. Even if the permit was cheaper (the government did reduce permit fees during the pandemic), the lack of protection for permit-holders - who are effectively ‘freelancers’ - under the labour law enables exploitative employment practices. The obligations of the client who contracts work to the permit holder are not clearly defined, and nor are the labour rights of the permit holder. Four years since its debut, grievance redressal and labour complaints for Flexi Permit holders are also still not prioritised; a labour lawyer in Bahrain told MR that the Labour Law does not apply to Flexi-Permit holders because they technically do not have an employer/sponsor, and that as such, they are only able to file cases against employers at civil courts, not labour courts.
The Flexi-Permit must not be understood as a benefit to workers alone, but as an option that makes the labour market more dynamic, providing employers with an opportunity to use services on a need-basis. Its success, however, requires an environment that respects and protects, contractually and financially, the labour of the individual. The labels of kafala, Flexi Permit, temporary, migrants are all convenient to bracket workers into narrow silos, excluding them from any opportunity to fully participate in society. It is important to recognise the entire gamut of rights of the individual outside of these labels to which they have limited access. Fair wages, affordable housing, public transport, social security, freedom of expression, access to justice, and unionisation are fundamental rights that must be ensured first and foremost — otherwise, reforms are merely performative.
The Flexi-Permit has the potential to meaningfully protect the rights of migrant workers. In addition to our previous recommendations on Flexi-Permit, some immediate and long term actions that should be taken include:
- Establish a minimum hourly wage;
- Introduce a standard freelance contract that enumerates the rights and responsibilities of both parties;
- Stipulate maximum hours of employment with a contractor over a set period of months. This would help ensure that employers do not shirk responsibilities by using the services of Flexi-Permit holders as freelancers in what should be a bonafide employment relationship;
- Create a system where workers and their contractors/employers are able to log hours and payment for monitoring;
- Include Flexi-Permit holders in subsequent WPS phases;
- Set up mechanisms for dispute resolution;
- Include permit holders in unemployment benefits, in proportion to their contribution;
- Refund workers their Flexi-Permit travel deposit fee while they are in Bahrain;
- Remove travel bans on irregular Flexi-Permit holders.
In the long term:
- Expand eligibility of workers/sectors for Flexi-Permit;
- Allow unionisation;
- Allow permit holders to sponsor their families, based on their aggregate income over a period of time.