The FIFA World Cup ’22 in Qatar has been embroiled in controversy since its hosting rights were first granted to the Arab country in 2010. Over the years, investigative journalists and human rights activists have drawn attention to the dismal living and working conditions of migrant workers engaged in building the infrastructure for the World Cup.[1] Although reports vary on the exact number, it is agreed that, since the preparations for the World Cup began, hundreds of migrant workers have lost their lives, many due to heat exposure in the harsh Middle Eastern summer.[2]
Nonetheless, hosting a World Cup that occurs every four years seems hardly enough of a standalone reason for the extensive human rights violations alleged. The fact is it is not a standalone reason. The roots of the issues exposed by media and international organizations over the past decade, in fact, go to the internalized structural and systemic faults in Qatar’s labor system, known more commonly as the kafala system. Kafala is a labor system followed in the six GCC countries, namely, Saudi Arabia, UAE, Qatar, Bahrain, Kuwait, and Oman, and Lebanon, which regulates labor migration into these countries.[3] The limelight brought by the World Cup has brought renewed attention to the inherently exploitative kafala system and the criticisms go beyond Qatar and before 2010. This piece delves into extant literature to understand the working of the kafala system, focusing on its inherent capacity to violate human rights, while evaluating the attempts that have been made by countries to reform the system.
What is the kafala system and what are the allegations against it?
The kafala system, at its simplest, is a sponsorship system which mandates that migrants hoping to reside or work in the concerned countries must be sponsored by an authorized entity who can be held responsible for the former’s life in the country. The authorized entity may be the government or one of its institutions, a registered company, or an individual, typically, a citizen of the country.[4] The roots of the kafala system are contested in literature. Most scholars, however, agree that the system derives from the concepts of kafil and makful found in Shariah law.[5] Literally, kafil refers to the ‘guarantor’ and makful to ‘the guaranteed party’, and kafalah is the system which joins the two in a contract with the former assuming responsibility for the latter’s liabilities, in a legal sense.[6] The modern kafala system may, however, be traced back to the recruitment process followed by the British during the colonial era in the Gulf region. The British employed a sponsorship system to regulate the number of migrant workers who flocked to Middle Eastern countries during pearling seasons in the early 1900s.[7] The system was found easy to implement since the Arab population was already familiar with the guarantor-guaranteed relationship. When oil became the principal business commodity in the region, the colonial system was modified into its modern form.[8]
Permanent residence, citizenship, and naturalization are not options available to migrant workers in countries following the kafala system.[9] This ensures that expatriate workers remain temporary residents in the country. While the ‘guest worker’ system is prevalent in other areas of the world, the kafala system stands out in the nature of the sponsor-sponsored relationship it espouses.[10] The employee is legally bound to and economically dependent on their employer as sponsor, who is responsible for everything from the former’s arrival and residence in the country to their mode of transportation and access to healthcare while there.[11] The system also mandates that sponsored workers secure the permission of their sponsors to change jobs or to terminate a contract before its end date, often, in the form of no-objection certificates (NOCs).[12]
While the allegations against Qatar in connection to the World Cup focused on the rights of construction workers, their working conditions, and nonpayment of wages, the criticisms leveled against the kafala system go beyond this. The very system of permitting individuals and private companies be responsible for a human being’s life resembles the idea of ownership associated with slavery.[13] Furthermore, according to the definition of ‘trafficking in persons’ provided in The Protocol to Prevent, Suppress and Punish Trafficking in Persons passed by the UN General Assembly in 2001, migrant labor under the kafala system is considered as a form of labor trafficking, especially where threats of cancellation, incarceration, and deportation are involved.[14] Investigations into labor trafficking, however, are rare in Arab countries, with only sex trafficking being considered a serious enough offense.[15] Studies observe, for instance, how the UAE’s decision to crack down on trafficking in the early 2000s was followed up with the formation of anti-sex trafficking squads, effectively ignoring labor trafficking under the kafala system.[16] Ironically, sex work in the country is understood as a way out of the oppressive labor system for migrant women. They felt that it gave them more privacy, flexibility, and time with their families.[17]
What’s more, the recruitment process followed under the kafala system leaves much space for intermediaries, who levy large sums from prospective migrant workers in the name of recruitment fees or charges.[18] Duping migrant workers by getting them to sign contracts that contain conditions different to those verbally agreed upon, like regarding wages, are all practices frequently heard of.[19] Besides intermediaries, the sponsor-sponsored relationship as prescribed by the kafala system creates and fosters a severe power inequality between the concerned parties, which is often manipulated by sponsors to benefit their agendas.[20] For instance, the confiscation of migrant workers’ passports to ensure they remain in the country till released by the employer is a widely observed practice, despite national laws banning the practice being in place in all these countries.[21] Such fraudulent practices are more commonly seen with the recruitment and migration of low-skilled workers, especially domestic workers.
The lives of migrant domestic workers under the kafala system
There is a constant high demand for low-skilled workers in Arab countries, due to rapid infrastructure development and the presence of a large market for domestic work.[22] Nearly 28% of all migrant domestic workers in the world are employed in Arab countries, which accounts for the 3.1 million migrant domestic workers in the region, of which over 60% workers are women.[23] Despite the staggering numbers, neither the labor laws of the GCC countries nor that of Lebanon’s extend to domestic workers, like housemaids, drivers, and cleaners. Although some countries have passed new laws to address this deficiency, domestic workers, especially female workers, continue to be among the most oppressed expatriates in Arab countries. Since domestic work is mostly undertaken as a live-in job, it increases the scope for physical, mental, and sexual abuse of these workers.[24] A national report released in Lebanon held psychologically disturbed ‘women of the households’ responsible for instances of abuse.[25] However, scholars reject this claim and argue that reducing the problems faced by domestic workers to the household fuels stereotypes such as the ‘dangerous Arab male’ and the ‘disturbed women’, while absolving the government and its adherence to the kafala system of fault.[26]Research indicates that abuse of domestic workers is facilitated by the kafala system, which creates a category of easily exploitable workers and generates in their sponsors a sense of ownership.[27]
Domestic workers are caught in a vicious loop where poor economic situations push them into the system and punitive measures and threats, therefore, motivate them to put up with dire working and living conditions.[28] For instance, the threat of cancellation in the UAE is one that migrant domestic workers regularly face. Legally, the system permits sponsors to ‘cancel’ their sponsored, which involves a forced exit from the country and a minimum ban of 6 months on re-entry, if the employee has violated the contract instead of simply ‘releasing’ them from the job.[29] Most of these workers have families back home dependent on their wages and are trapped in situations of debt bondage in the Arab country, which compels them to remain submissive and avoid punitive measures like cancellation. Domestic workers usually have a weak understanding of the country’s legal system and, hence, believe the threats made by their employers to be true when, in many cases, legal systems are in place to prevent such punishments.[30] Unawareness of the country’s laws and the rights guaranteed to them, coupled with poor command over Arabic, makes legal systems inaccessible to unskilled workers.[31] Under the kafala system, workers, especially those in live-in employment, like housemaids, who leave their employer without permission are considered ‘absconding’, which is a criminal offense.[32]Moreover, not only does the system not pay attention to the poor conditions these workers flee from, but studies conducted in Qatar and Bahrain also find that, even when offenses committed by the employers are discovered, authorities are likelier to punish migrant workers than address the violations of employers, especially if the latter are Arab nationals.[33]
Attempts at reform and their results
Over the last decade, with the eyes of the world on the World Cup, most Arab countries brought forth reforms that aimed to fill the gaps in their labor systems. Qatar, for instance, implemented laws that permit employees to change jobs and exit the country without their sponsor/employer’s permission[34]. A wage protection Act was also enforced in Qatar and the UAE to ensure that workers were duly compensated for their labor.[35] Saudi Arabia, Qatar, UAE, and Lebanon were some of the countries that imposed strict working hours so that workers received an adequate amount of time off every week.[36] Lebanon implemented a new contract for domestic workers, which included provisions for voluntary termination of a work contract by either the employer or the employee with a month’s notice, better wages, and mandatory health insurance.[37] Similar laws for domestic workers were passed by the governments of UAE, Saudi Arabia, Qatar, Kuwait, and Bahrain.[38] However, the reformations do not guarantee domestic workers all the rights guaranteed by these nations’ original labor laws, and Oman is yet to include domestic workers in the narrative.[39]
Despite the seemingly impressive steps taken by most countries towards dismantling the kafala system, poor enforcement and implementation of these steps have dampened their effectiveness.[40] The above-mentioned tendency to safeguard Arab nationals’ interests makes for a partial system that resorts to subduing the few migrant workers who manage to access legal systems of these countries. In addition to this, the reform initiatives mentioned above are neither perfect nor exhaustive in their protection. For instance, no country, except Qatar, has removed the requirement that employees secure their employer’s permission before leaving the country. Despite the move which was hailed by many as the ‘end of kafala’, Qatar’s Ministerial Decision No. 95, which permits employees to leave the country without an exit permit from their sponsor, too, is fraught with problems.[41] While this law extends to domestic workers, an additional clause comes into play in their case. Domestic workers are legally mandated to give their employers 72 hours’ notice before leaving the country, which was pointed out by human rights activists as cause for concern.[42] They felt that such a clause could lead to more violations of workers’ rights, since it gives employers enough time to stop their employees from leaving the country using threats or, in the worst cases, physical abuse.[43] Hence, it is safe to assume that the right to movement of migrant workers in all countries following the kafala system is curtailed, at least to some extent.
Additionally, despite the mandates on payment of wages and strict working hours, cases of their violation are still being reported from these countries. The Human Rights Watch’s 2022 World Report found that, in countries with the kafala system, the circumstances of migrant workers took a turn for the worse during COVID-19.[44] Several domestic workers were forbidden from leaving their employer’s houses, essentially locking them up and increasing the chance of abuse.[45] Wage exploitation also grew during this period, many workers were left jobless, and the lockdowns and subsequent high airline prices made possibilities of their going home bleak[46]. In a similar vein, in Lebanon, the fracturing of their economic and security systems following the 2020 Beirut explosions had a severe impact on migrant workers in the country. Many workers were left jobless, homeless, and in very poor living conditions.[47] These cases prove that the slightest unanticipated stresses affect migrant workers in these countries the worst.
It is irrefutable that the kafala system is in need of more than reform: it is in need of a major overhaul. Above all suggested reforms, an effective solution to the kafala system should involve the increased democratization of Arab societies and a radical restructuring of the political systems of these nations. That it is illegal to form unions or strike against infringements on individual rights in all these countries speaks volumes to the curbs on political and civil liberties imposed on their residents.[48] Despite such sweeping restrictions, many researchers studying Arab nations rightly observe that the citizens and wealthy expatriates of these countries will not accept changes to a system that suits them so well.[49] Changing public attitudes and educating the residents of these countries, both citizens and migrants, of their individual rights must be the first step towards the dismantling of an age-old system.
Endnotes: [1] Amnesty International, The Ugly Side of the Beautiful Game, (London: 2016). [2] HRW, “Qatar World Cup Chief Publicly Admits High Migration Death Tolls,” Dispatches, (2022). [3] Paula Renkiewicz, "Sweat Makes the Green Grass Grow: The Precarious Future of Qatar's Migrant Workers in the Run up to the 2022 Fifa World Cup under the Kafala System and Recommendations for Effective Reform," American University Law Review 65, no. 3 (2016): 721-61. [4] Hanan Malaeb, "The Kafala System and Human Rights: Time for a Decision," Arab Law Quarterly 29, no. 4 (2015): 307-42. [5] Islam’s legal system. [6] Malaeb, “The Kafala System and Human Rights…” [7] Omar Hesham AlShehabi, "Policing Labour in Empire: The Modern Origins of the Kafala Sponsorship System in the Gulf Arab States," British Journal of Middle Eastern Studies 48, no. 2 (2021): 291-310. [8] Ibid. [9] Sabine Damir-Geilsdorf and Michaela Pelican, "Between Regular and Irregular Employment: Subverting the Kafala System in the Gcc Countries," Migration and Development 8, no. 2 (2019/05/04): 155-75. [10] Amrita Pande, "The Paper That You Have in Your Hand Is My Freedom: Migrant Domestic Work and the Sponsorship (Kafala) System in Lebanon," International Migration Review 47, no. 2 (2013 2013): 414-41. [11] In most cases, employers are sponsors of migrant workers. Hence, these may be used interchangeably throughout the article. Additionally, Amanda Garrett, "The End of Kafala? Evaluating Recent Migrant Labor Reforms in Qatar," Georgetown Journal of International Affairs, 21 (2020): 201-208. [12] Garrett, “The End of Kafala?...” [13] Patrick Rak, "Modern Day Slavery: The Kafala System in Lebanon," Harvard International Review 42, no. 1, Winter (2021): 57-61. [14] ‘Trafficking in persons’ is defined by The Protocol, thus: “…the recruitment, transportation, transfer, harboring, or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include…forced labor or services…”. Additionally, the United Nations General Assembly. Resolution A/RES/55/25. United Nations Convention against Transnational Organized Crime. 2001. [15] Mustafa Qadri, “The UAE’s Kafala System: Harmless or Human Trafficking?” Carnegie Endowment for International Peace, (2020): 79-83. [16] Pardis Mahdavi, "Gender, Labour and the Law: The Nexus of Domestic Work, Human Trafficking and the Informal Economy in the United Arab Emirates," Global Networks 13, no. 4 (2013): 425-40. [17] Rhacel Salazar Parreñas and Rachel Silvey, "The Governance of the Kafala System and the Punitive Control of Migrant Domestic Workers," Population, Space and Place 27, no. 5 (2021). [18] Damir-Geilsdorf and Pelican, "Between Regular and Irregular Employment…” [19] Qadri, “The UAE’s Kafala System…” [20] Malaeb, “The Kafala System and Human Rights…” [21] HRW, World Report 2022, New York: 2022. [22] Qadri, “The UAE’s Kafala System…” [23] Parreñas and Silvey, "The Governance of the Kafala System…” [24] Ibid. [25] Pande, "The Paper That You Have in Your Hand…” [26] Ibid. [27] Ibid. [28] Parreñas and Silvey, "The Governance of the Kafala System…” [29] Ibid. [30] Damir-Geilsdorf and Pelican, "Between Regular and Irregular Employment…” [31] Ibid. [32] Parreñas and Silvey, "The Governance of the Kafala System…” [33] Damir-Geilsdorf and Pelican, "Between Regular and Irregular Employment…” [34] ILO, “How have labour reforms progressed in Qatar?” (2022). [35] HRW, World Report 2022. [36] Ibid. [37] ILO, “Lebanon takes crucial first step towards dismantling Kafala in Lebanon,” (2022). [38] HRW, World Report 2022. [39] HRW, “UAE: Domestic Workers’ Rights Bill a Step Forward,” (2017). [40] Garrett, "The End of Kafala…” [41] Ibid. [42] Ibid. [43] Ibid. [44] HRW, World Report 2022. [45] Ibid. [46] Ibid. [47] Rak, "Modern Day Slavery…” [48] Damir-Geilsdorf and Pelican, "Between Regular and Irregular Employment…” [49] Qadri, “The UAE’s Kafala System…”
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United Nations General Assembly. Resolution A/RES/55/25. United Nations Convention against Transnational Organized Crime. 2001.https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_55_25.pdf
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