In this article, we will discuss the Kafala System implemented throughout many of the Gulf states in the Middle East. We will examine the history of the Kafala system, as well as current forms of the Kafala in Middle East countries which include the Saudi Kafala system, Kafala in Qatar, among other countries. Furthermore, we will also discuss the criticisms of Kafala by human rights activists, and potential reforms of this system in the different countries which Kafala exists. The Kafala System has become a major international relations issue, as activists recognize the ways in which this system allows sponsors to violate human rights of migrants.
What is the Kafala System?
The word Kalafa (or Kafeel) in Arabic means Sponsorship. The Kafala System is a sponsorship system in which employers will sponsor migrant workers so that they can come into a country and work. Migrant workers come from many southeast Asian countries such as Pakistan, Sri Lanka, Bangladesh, and Nepal (for example, it is said that roughly 16,000 Nepali migrant workers go to the Gulf Cooperative Council countries each month) (Bajracharya & Sijapati, 2012).
The Kafala system is a set of rules that governments set up with regards to migrant workers. Each government’s Ministry of Interior is in control of the Kafala system (Migrant-Rights, 2015) (as has been noted, this in and of itself is a problem, since the Kafala is not under the Labor Minister, who, not only works with domestic labor laws closely, but also has the ability to help resolve labor disputes (Migrant Forum Asia, ND) in ways others may not do so) (Furthermore, domestic labour laws tend to not even recognize the rights of the migrant workers under Kafala, since they are an extension of the kafil’s family, and thus, domestic laborers are not under this category of labor laws. Thus, these migrant workers are in a sense “invisible”) (Bajracharya & Sijapati, 2012).
The problem with the Kafala system is the power that it offers sponsors, at the expense of migrant workers. Namely, “The system gives sponsors a set of legal abilities to control workers: without the employer’s permission, workers cannot change jobs, quit jobs, or leave the country. If a worker leaves a job without permission, the employer has the power to cancel his or her residence visa, automatically turning the worker into an illegal resident in the country. Workers whose employers cancel their residency visas often have to leave the country through deportation proceedings, and many have to spend time behind bars” (Migrant-Rights.org, 2015).
Again, a primary concern with the Kafala system is that it favors ideas of security, and now the human rights of migrant workers (Migrant-Rights.org, 2015). Furthermore, because of the “temporary” nature of the migrant being in the country (the Kafala system passed by governments stresses this notion of “guest” and not “resident”), the migrant worker never has the full set of rights, or the peace of mind that they will ever be in a condition in which their rights will always be protected (Migrant Forum Asia, ND).
Moreover, the migrant workers rarely receive full information about what jobs they will do, the living conditions, and also the lack of real protection in the host country that they are expected to spend years working in (even when there are information sessions in their host country, many future migrant workers do not go due to the distance away from their home) (Bajracharya & Sijapati, 2012).
History of the Kafala System
There are different stories of the point of origin regarding the Kafala system. Some, such as “Anh Nga Longva, in her book Walls Built on Sand: Migration, Exclusion and Society in Kuwaitdescribes how kafala stems from the traditional pearl fishing economy in the Gulf. Boat owners would “sponsor” pearl divers each season, advancing them their room and board on the pearling boat, as well as expenses for their families. At the end of the season, the owners would subtract these expenses from the wages crew members had earned and pay them the balance—if any remained. Typically, the divers remained in a continuous cycle of debt” (Migrant-Workers.org, 2015).
Others look at the history of the smaller Gulf states and their history of brining in foreign workers as the early period of the establishment of the Kafala system. Early on, the number of migrants was much lower than today. Then, anyone from outside the country looking to work and live in these states needed to receive a “sponsorship” by someone in the country. This was not only an economic sponsorship, but it also extended into elements of live. For example, under the early Kafala system, if someone sponsored committed a crime, not only would they be punished, but so would the person or persons who offered the sponsorship (Migrant-Rights.org, 2015).
In the early history of Kafala, the sponsor system was structured around the notion of hospitality (Khan, 2014). So, in the first Kafala systems, it was a way for nations of a country to help and protect migrants. Today, the Kefala systems are not helping migrants, but rather, are making them dependent on the powers of the sponsors (Migrant-Rights.org, 2015).
Plus, given the higher number of migrant workers in the Gulf states, today’s Kafala system is much less like the previous early Kafala sponsoring systems in that there is less expectation of individuals sponsors protecting migrants without the government or other organizations overseeing the system (Migrant-Rights, 2015). In the current Kafala system, “Employers have an incentive to pay workers less, skimp on benefits, and demand more hours of work. Companies rather than individuals sponsor most migrant workers in Gulf economies. A company may sponsor dozens—even hundreds—of foreign workers, and the company’s owners often have little to do with overseeing their daily working conditions or payment” (Migrant-Rights.org, 2015).
As Bajracharya and Sijapati (2012) note that while “The system also implied that the sponsor was responsible for the safety and protection of foreigners and guests…[,] [o]ver time, however, the true meaning of the kafala system has changed and is now being used primarily to provide the central governments of the GCC countries with the means of regulating labour flow into their respective countries” (3).
Migrant workers make up significant minority and majorities with overall populations of receiving Gulf Cooperative Council. In Qatar, for example, migrant workers have made up about 87 percent of the entire population. The number has been at 70 percent in the United Arab Emirates, 69 percent in Kuwait, and 54 percent in Bahrain (with 26 percent of the Saudi population being migrant workers) (Bajracharya & Sijapati, 2012).
Are All Kafala Systems the Same?
Kafala Sponsorship Systems, while having a lot of similarity, do differ depending on the country in which the Kalafa is structured. A lot of the attention on the Kafala system as of late has centered on the human rights in Qatar, as the country prepares for the 2022 World Cup. But there are many Gulf states, as well as other countries that have implemented a Kafala system. Each of them differs depending on how migrant workers can enter into the country, the exact relationship between the sponsor and the migrant worker, and there are also differences on the rules regarding how a migrant can leave the country. As we shall discuss below, one of the main differences between the different Kafala systems has to do with whether the country requires an exit visa for the migrant to leave their employer and the country.
Fees and the Kafala System
Many of the countries that have a Kafala sponsorship system in place have established rules against company’s collecting any sort of fees from migrant workers in exchange for proving the sponsorship opportunity. Yet, unfortunately, sponsors often ignore these laws, and implement fees on migrant workers who want to come into the country. Unable to pay for the fees right away, migrant workers often go into debt, which they have to pay back. This debt can take years for them to repay, and in the meantime, they are often at the mercy of the debtor. Furthermore, domestic labor laws in the Middle Eastern countries also call for migrant workers to not have to pay for health insurance, as well as permit fees. Unfortunately, in the kafala systems, “intermediaries such as recruitment agencies often charge such fees to foreign workers. Indemnities for delays in registration are also often billed to workers. Similarly, some kafeels partially withhold final payments to foreign workers to recover some of the recruitment costs. Also, many kafeels exploit the workers by only leasing their sponsorship against payments. Although kafeels behaving in this way remain a minority, their victims are in the tens of thousands” (Khan, 2014).
Contracts Under the Kafala (Sponsorship) System
Technically, migrant workers sign contracts with their sponsors before they begin their travels and work in the host country. However, this is not always the case; many migrants have not been given contracts in their home country. In other cases, there are contracts, but the agreement is either not actually signed by the migrant worker themselves, or, they do not know the terms within the contract. Plus, even in cases where work agreements are stated and signed before departure, these contracts not only rarely provide them with human rights protections, but they are often changed or ignored upon the migrants’ arrival into their host country; “Recruitment agencies at home countries often substitute contracts drawn at the destination countries with one that has different terms and conditions. Such malpractices involving contract substitution also occurs in destination countries” (Bajracharya & Sijapati, 2012: 4). In other cases, disputes within GCC countries has limited the contracts that are admissible to Arabic language ones, this puts workers at a disadvantage, either being unable to sign this contract (most migrant workers do not speak Arabic), or, it could leave the sponsor to change the language and terms of the Arabic contract (and despite attempts to streamline contracts through a common form, sufficient enforcement mechanisms are lacking (Bajracharya & Sijapati, 2012).
Work Human Rights Abuses for Migrants
As discussed in the earlier part of this article, migrant workers in the Kafala System are subject to a number of human rights violations. Not only are they often lied to with regards to their contracts, and their freedom of movement is restricted, but they also face bad work and living conditions. For example, under the Kafala system, employers are making migrant workers work long hours, without days off, often in dangerous conditions. In addition, these workers are also expected to do additional work (often outside of the contractual agreements). There are cases where workers are “loaned” out to others, so they are doing more work, work that they are also rarely paid for. As mentioned, they often get lied to about salary figures, and so many of them do not get paid on time. Moreover, the migrant workers are often cut off from their families back home, not only physically, but also with regards to communication, since employers often restrict them from calling back home. They are also often unable to see fellow migrant worker friends or relatives. In these cases, “The rationale often given by the employers for imposing such a prohibition is that it limits the likelihood of the domestic workers leaving the household before they have completed their contract term” (Bajracharya & Sijapati, 2012: 5).
Another gross human rights violation migrant workers have faced has been the issue of sexual abuse. Employers have been know to carry out a number of sexual violations to workers who do not have adequate protections by the state or their workers (who again, are in many instances the violators). This can be for people working in different fields. Many migrant workers who refuse sexual advances have been harassed (Bajraacharya & Sijapati, 2012).
Exist Visas and the Kafala System
One of the key differences of the various Kefala systems has to do with exist visas. In most of the Kafala systems, a migrant worker does not need an exit visa to leave the country. However, there are two cases where they do need such as visa: Qatar and the Saudi Arabian Kafala. This exit visa is for anyone who is a migrant worker. So, when an employer chooses to not grant the visa, then the person who is a migrant is unable to leave. One famous case of this has to do with French soccer player Zahir Belounis, who plays his club football in Qatar. After a legal disagreement with the team’s management, they denied him an exit visa, and he was unable to leave for almost two years (Migrant-Rights.org, 2015).
Related to this, and despite laws against it, sponsors also limit travel by holding the passports of migrants. By doing this, migrants are at the complete authority of their sponsor; they have not legal ability to leave if their sponsor does not provide them back their documents. Governments are opposed to this as well, and thus “forbid the retention of passports and recognise expat workers’ right to complain and recover their passports. However, workers know such a move would be considered as a hostile challenge by employers, which may result in punishments, reduction in wages, non-renewal of contracts, false accusations or ultimately deportation. In extreme cases, kafeels exchange passports for declarations by workers that they have received their dues, especially end-of-service payments and wage arrears” (Khan, 2014).
In other countries, the Kafala system offers different options for leaving a job and/or the country. But regardless, the majority of Kefala systems do not offer pure freedom of movement, which is in itself a direct human rights violations. Plus, because of this inability to move to a better job, or to leave the country without approval, the Kefala system is in direct contract to labour mobility. So, workers have to do what their sponsors tell them, since they do not have the ability to go about changing their conditions (Khan, 2014). Thus, “Under the Kafala system the migrant worker may be identified as a ‘guest worker’ but are often treated as a disposable economic commodity at the mercy of their sponsor” (Migrant Forum Asia, ND).
In countries like Kuwait, for example, “Under Article 3 of Kuwait’s Private Sector Labour Law, an expatriate worker must obtain a work permit issued by the Ministry of Social Affairs and Labour, under the sponsorship of a Kuwaiti entity. The law also states that a release is required from the sponsor for the work permit of an employee to be transferred to the sponsorship of another Kuwaiti entity” (Rodriguez, 2014). In Oman, a migrant cannot leave to work for another employee without permission of the first employee (Rodriguez, 2014).
Can Migrants Run Away in the Kafala System?
Given the conditions migrant workers face, questions have been raised on whether it would be better for them to run away from their current conditions. While this might sound like a good idea–given the dire conditions migrant workers face, running away poses additional challenges. For one, countries in the Gulf Cooperative Council view running away from a Kafala agreement as criminal. This exposes them to being arrested, and then jailed (so the guilt is already assumed) (Bajracharya & Sijapati, 2012). Furthermore, “Runaway workers do not get any form of justice even in the case where there is an obvious violation of rights” (Bajracharya, ND). Moreover, the judiciary process is slow, and during the entire time, a migrant cannot work. Plus, they are still unable to leave the country since they do not have the exit visa (Bajracharya, ND).
Take the case of Kuwait. In the country, “Kuwait’s Head of the Public Manpower Authority announced, in November 2014, that the country had 12,000 unresolved “absconding” charges registered against migrant workers, and that workers’ residency visas were cancelled immediately when sponsors filed their claims. The Kuwait Human Rights Society described absconding claims as “a sword hanging over the heads of workers….misused…to prevent workers from receiving their financial dues”” (Migrant-Rights, 2014).
Moreover, “Once a contract has been breached before its term, a sponsor often files a case of abscondment with the police, raising the risk of deportation and making the domestic worker liable to pay back the recruitment fee and other costs borne by the sponsor to hire the worker” (Bajracharya & Sijapati, 2012: 6). Even if they are able to escape, and contact their embassy (or a safe house, which is not very easy), the identification process is far from easy or quick, which can leave them vulnerable for months. The problem is that even if they can get to an embassy, the notion of the exit visa for leaving is still required (Bajracharya & Sijapati, 2012).
Kefala System: Supply and Demand
Because of the supply and demand ratios between countries that have populations looking for work, and the much smaller number of migrant positions available in the Gulf States and other Middle Eastern countries, migrant workers fear that any challenge of existing norms within the current power structures of the Kafala system might lead them to lose their opportunity for work outside of their homelands. There is a fear that they could be easily replaced by someone else who is willing to do the job without asking questions, or making rights demands. So, this makes it even harder for a migrant to speak out for rights, given that they might lose their change for work (Migrant Forum Asia, ND).
Reforming the Kafala System
The different Middle East countries with a Kafala system have been pushed to reform (and even end) their current sponsorship programs. While activists advocate complete reform (and the abolishment of the Kafala), some of the countries have been more willing to change the requirements and sponsorship rules in recent years, whereas others have maintained their current rules under the Kafala.
Regarding altering the Kafala (Sponsorship) System, “In 2009, Bahrain adopted the strongest sponsorship reforms in the region by permitting migrant workers to change employment without their employers’ consent and in the absence of allegations of nonpayment of wages or abuse. 2009′s legal reforms allowed migrant workers to change employment after meeting certain notice requirements and provided a 30-day grace period to remain legally in the country while they seek new employment. However, these positive changes do not apply to domestic workers” (Rodriguez, 2014).
In addition, “Kuwait stated in 2010 that its kefala system would be abolished – but in 2011, officials said they were not ready to make the change. In 2012, a Saudi Labor Ministry official said reforms were on the way, stating that Saudi Arabia does “not recognize anything known as sponsorship.” Yet today, kefala in Saudi Arabia remains alive and well. Bahrain loosened its sponsorship system in 2009, allowing migrant workers to change jobs without their employers’ permission, but the reforms were rescinded following unrest in the kingdom in 2011. The United Arab Emirates has taken a somewhat different trajectory. In 2011, migrant workers were granted the right to change employers upon completing fixed-term contracts. This reform, which remains in effect today, may have led to an increase in workers’ earnings, one study has found” (Bollier, 2016).
Qatar has received a lot of negative attention for its Kafala system given the human rights abuses related to migrant workers as the country constructs stadiums for the 2022 World Cup. Because of this, the government has promised that it would reform the Kefala system. However, after saying in 2014 that they would change the system, has still not brought in the needed reforms. There are hopes that Qatar will follow through on this by the end of 2016 (Bollier, 2016).
Ending the Kafala System
Given the human rights violations resulting from the current Kafala systems, human rights and labor activists have called for abolishing all Kafala (sponsorship) systems. As Khan (2014) has noted, “The kafala directly contradicts the labour law. The raison d’être of the law is to bring about a balance, in terms of rights and obligations, between the employer and the employee, but the kafala puts far too much power in the hands of the employer/sponsor. The employer can dictate the recruitment process and working conditions. The paradox is that the kafala is not a law but a tradition that seems to have precedence over the labour law. This is at the root of abuses of workers’ rights.” In Saudi Arabia, “In April 2012, Labour Ministry had proposed abolishing the kafala system by transferring immigration sponsorship to newly created recruitment and placement agencies, but later retracted its decision” (Rodriguez, 2014).
Again, the system is not fair for migrants, and only allows sponsors to use and abuse workers. It is therefore essential that the Kafala system is ended, and that migrants are given full human rights, which include assurances that they don’t have to pay for travel documents, that they are paid what their contract calls for, and that have the ability to safe work conditions, and also the ability to leave their employer and/or the country without problems.
Other than ending the Kafala System, it is imperative that point of origin and host countries work together to ensure that migrant workers are protected throughout the entire process (Bajracharya & Sijapati, 2012).
Kafala System References
Bajracharya, R. (ND). ‘Kafala’ or ‘Sponsorship System.’ Centre for the Study of Labour and Mobility (CESLAM). Available Online: http://ceslam.org/mediastorage/files/Kafalaâ€™%20or%20â€˜Sponsorship%20Systemâ€™.pdf
Bajracharya, R. & Sijapati, B. (2012). The Kafala System and Its Implications for Nepali Domestic Workers. Center for the Study of Labour and Mobility, Policy Brief, March 2012, No. 1, pages 1-16. Available Online: http://www.ceslam.org/docs/publicationManagement/Kafala_Nepali_Domestic_Workers_Female_Migration_Eng.pdf
Bollier, S. (2016). What’s Holding Up Labor Reforms in Qatar? Journal of Middle Eastern Politics and Policy, May 21, 2016. Available Online: http://hksjmepp.com/qatar-labor-reform/
Gardner, A.M. (2010). Engulfed: Indian Guest Workers, Bahraini Citizens and the Structural Violence of the Kafala System. University of Puget Sound: Sound Ideas. From The Deportation Regime: Sovereignty, Space, and Freedom of Movement. Nicholas De Genova and Nathalie Peutz, eds. 2010. Duke University Press.
Khan, A. (2014).Why its time to end Kafala. The Guardian. 26 February 2014. Available Online: https://www.theguardian.com/global-development/2014/feb/26/time-to-end-kafala
Migrant Forum Asia (ND). Reform of the Kafala (Sponsorship) System. Policy Brief No. 2, pages 1-8. Available Online: http://www.ilo.org/dyn/migpractice/docs/132/PB2.pdf
Migrant-Rights.org (2015). Understanding Kafala: An Archaic Law at Cross Purposes With Modern Development. Migrant-Rights.org. March 11, 2015. Available Online: https://www.migrant-rights.org/2015/03/understanding-kafala-an-archaic-law-at-cross-purposes-with-modern-development/
Rodriguez, A. (2014). The Kafala System in the GCC. The Gazelle. March 15, 2014. Available Online: https://www.thegazelle.org/issue/issue-33/features/kefala-system