By Maysan Alobaid
This blog post was submitted as a contribution to the Tabula project, an international and comparative research collaboration carried out over the summer of 2021.
The Kafala system—a legal approach that many Middle Eastern countries have agreed on—occupies a large portion of the news. Although many countries use this system, their reasoning and problems with it are slightly different from country to country.
“Kafala” is an Islamic jurisprudence concept. The word Kafala in Arabic has various meanings, connoting terms such as “support,” “warrant,” and “vouch”—that is, Kafala pertains to bail, guaranty, and sponsorship, making responsibility and security its focus. In Islamic jurisprudence, however, Kafala occurs in an agreement to assume the liabilities of a person’s interactions with either money (Kafala bi al-mal) or body (Kafala bi al-nafs). The Islamic application can be witnessed in Islamic family law, where Kafala is an agreement in which an orphaned child is supported until adulthood as a form of guardianship. Another Islamic application of Kafala happens with debt, where a guarantor agrees to take responsibility for a debtor’s obligations with a creditor. Additionally, Kafala occurs in guaranteeing a person after bail, where a bailee’s sponsor becomes responsible for any action by the bailee during the probation period. The Islamic intention and application of Kafala, then, is meant to provide trust and social solidarity for many human interactions where the guarantor’s help enables them to carry the responsibility without gaining any special benefits. This understanding of Kafala transpires in various legal interactions worldwide.
The Kafala System of Employer Sponsorship
What has been practiced in the modern application of the Kafala system regarding labor shares the name with the Islamic concept, yet misses the intention. The Kafala system (sponsorship system) as known in the international community today outlines the relationship between foreign workers and their local sponsor, who is their employer—which in concept does not differ substantially from worldwide immigration policies. A nation using the Kafala system provides local employers with a sponsorship permit to attract non-citizen employees, provided that the employer will cover all travel, housing, and transportation expenses. This system is implemented among all Gulf Cooperation Countries—Saudi Arabia, Bahrain, Kuwait, Oman, Qatar, United Arab Emirates—as well as Jordan and Lebanon. Although this is a system related to labor law, its regulation authority often falls under interior ministries for the reasons explained henceforth. The Kafala system gives the employer the responsibility of upholding foreign workers’ legal status and visa, restricting many aspects of an employee’s mobility. This creates a disparity in the power dynamic between an employee and the employer, where the employer holds the power, and an employee is in a perpetual state of vulnerability. Holding the power can take the form of confiscating and withholding an employee’s passport and/or documentation; refusing to transfer their contracts to another employer; ending the contract, which results in the immediate deportation of the employee if any issue arises between the parties; and having an illegal status if an employer doesn’t grant an exit visa after the contract is terminated. The clear imbalance in the employment relationship thus attracts human rights, refugee, and labor activists to negotiate and reform the Kafala system, a lofty pursuit that must account for multifaceted areas of economics and social structure.
The Kafala system started in Gulf Cooperation Countries at a time when they had rich natural resources and not many working hands. The intention was to enable foreign nationals to help in building some needed project infrastructure for the oil and pearl industries and to train nationals in the work, with the assumption that once the project was completed, the foreign workers would return home. However, with the small populations and sudden wealth that these countries accumulated, the need for foreign workers continued—hence the prolongation of the Kafala system, in addition to granting refugees legal status by including them under the Kafala system in some countries, like Saudi Arabia. Many of the Gulf countries that practice the Kafala system have undergone revolutionary reforms in the past year—Saudi Arabia being one of the leaders in these reforms. But the reforms exclude domestic workers, who are the most vulnerable in this situation; the only countries that protect them under the same regulations are Jordan and, in some cases, Bahrain. Nevertheless, after the vast changes in Kafala regulations, employees are entitled to mobility: they are permitted to change or quit their jobs without permission after one contract year in Bahrain, Jordan, Kuwait, Qatar, and Saudi Arabia. The same courtesy is still denied in Oman, Lebanon, and UAE, however. Additionally, leaving the country without permission is allowed in all countries, yet the most important aspect—freedom to negotiate the contract—is restricted in both Jordan and UAE, since there is a standard contract for all workers.
Kafala labor as practiced in the modern day is in direct conflict with not only Islamic ethics, but also international responsiveness regarding labor rights. The world keeps moving toward an international human unity in which an individual’s holistic welfare must be awarded priority. Although Kafala reforms are still lacking in Middle Eastern countries, I am hopeful that a more rounded approach is proceeding in the region.