The kafala system refers to an asymmetrical employer-employee arrangement which enables migrant workers to be ‘sponsored’ by individuals or companies to work overseas, most often in domestic or construction roles. The kafala (meaning ‘sponsorship’ in Arabic) system is prevalent in Middle Eastern countries and is practiced in every Gulf state. It is heavily criticized by human rights advocates and organizations due to the unchecked control it gives employers – enabling countless cases of human rights abuses.
Sponsors have the power to confiscate or withhold employees’ passports and documentation, request fees for any number of reasons they deem fit, and the working conditions of many migrants grossly impinge upon what we in Australia refer to as ‘fair work’ standards. Workers may be confined to a house or work station, underpaid, overworked, and abused by their ‘madams’ or ‘masters.’ While not all employers may conduct business this way, the kafala system makes all migrant workers vulnerable to that reality.
In some states, the majority of the workforce is made up of migrant workers, and sometimes substantially. For example, according to a United Nations report, over 90 percent of workers in Qatar are migrants whose work visas and residencies are sponsored by their employers. Tight restrictions around changing employers, as well as a constant need for permission, means that workers become completely dependent upon their kafeels and face prosecution and deportation should they try to escape.
Due to intense criticism of the system by human rights groups and external powers, some countries using the kafala system have taken steps towards changing the way they manage migrant residency and employment. Such is the case of Qatar, where a fairly new law is claiming to ‘abolish’ the kafala system and replace it with a regulated contract-based one which would grant employees more freedom. However, the new system still favours the employer, and since the initial implementation of the law in December 2016, many sponsors have found loopholes in the legislation. According to migrant rights.org, some emigrants have reported little change in their freedoms or circumstances since the new system was introduced. Other Gulf states such as Bahrain and Kuwait have also reformed their system after persistent urging from the UN and the international community, but none of the changes have yet resulted in the abolishment of the kafala system.
As a result, the failure of new laws and systems put in place to improve the lives of migrant workers have been largely ineffective. Legislation is not enforced strongly enough and no real ramifications exist for not abiding the new laws. Even the reforms to migrant workers’ rights are in favour of the employer or sponsor as they still allow for an imbalance of power that results in workers being either too afraid or encountering too many obstacles to take advantage of any new legislation that may help.
Similarly, a major reason why the problem continues to persist may lie in the fact that the system typically stems from the economic structure of these countries. Indeed, many of the countries that utilize the kafala system are classified as ‘rentier states’- states in which the majority of their revenue and the stability of their economy depends upon the rent of their indigenous resources, (eg: oil, coal) to overseas clients. Essentially, the government holds complete authority in this scenario. In a rentier state, the main revenue stream comes from renting out national resources rather than the population’s workforce; this income then covers the security and livelihood of its citizens in return for their acceptance of complete state authority. With no large national workforce, there is no tax and no government accountability, and so the citizens of a country become indebted to their government. Primarily employing migrant workers means that the majority of the nation’s citizens stay dependent upon the government, and so the kafala system thrives.
This relationship is important because it demonstrates how reliant rentier states have become on the kafala system and migrant workers to maintain the functioning of their societies, and how abolishment of the system is a huge undertaking that would have significant impacts upon their economies and power structures. The response of nations such as Qatar fail to address this underlying factor. Perhaps the harsh reality is that the abolishment of the kafala system will only follow a reconstruction of society and economy.
Taking into consideration the continued demand for labour workers and their vital role in many of the receiving countries, any alternative to the kafala system as it operates today should still allow migrants to find employment. But it should also adopt a human rights-based approach. The idea of a sponsorship system is not inherently bad, and perhaps with better regulation and harsher penalties, the kafala system could be improved to benefit both parties equally. To arrive at a viable solution, past attempts at reforming the current system may help to instruct us. Perhaps there are aspects of former initiatives that can be adopted again but enforced, this time, to the best of our ability.
For example, a 2009 Bahrain initiative instated a ‘Labour Market Regulatory Authority’ (LMRA) that was intended to be responsible for regulating and sponsoring migrant workers, replacing individual and private employers who are more likely to exploit and mistreat employees. Saudi Arabia also considered changes that would effectively abolish private and individual sponsors through the creation of recruitment and placement agencies tasked with the regulation of migrant workers. In both cases, aspects of the new system are yet to be adhered to properly or to prove better outcomes. Bahrain’s LMRA did take on the regulation of workers but did not effectually take over sponsorship, keeping the kafala system intact, while Saudi Arabia’s reforms still did not enable workers to leave or change jobs without their employer’s permission.
Yet, the notion of a government-monitored agency or agencies that are tasked with acting as sponsors does seem useful in limiting the potential for private sponsors to exploit migrant workers. If adhered to faithfully, this might be one possible solution in improving conditions for migrant workers under the kafala system. It is possible that through recruitment and sponsorship agencies, migrant workers would still be susceptible to exploitation, so I emphasize that such agencies be government-monitored.
There still remains the employer and employee, but the government agency functions as a middle-man and all business is conducted through them to eliminate any unjust practices from occurring. I also propose that this system be adopted in all states utilizing the kafala system so that each state hold each other liable through a sort of system network. Additionally, if it could be arranged that those states who are also members of the UN produce an annual report to be presented at UN general assemblies, I believe that involving the international community would provide additional security. We all must take some responsibility in upholding human rights.
Migrating for work gives people with limited options the opportunity to earn an income to support themselves and their families. It is an arrangement that has the full potential to benefit all parties involved if certain laws are changed. Specifically, the law that allows employers to confiscate their employees’ passport and visa documentation should be abolished as this directly encroaches upon a handful of human rights and perpetuates the suppression of workers’ freedoms.
Additionally, workers should have the freedom to change their place of employment with due notice, without requiring the permission of any individual or body and there should not be a threat to security of person in the form of detention or other punishment as a result of doing so. Migrant workers are entitled to the same rights and treatment as nationals.