Jan 14, 2021

In early November 2020, Saudi Arabia’s deputy minister for human resources announced that Saudi Arabia would be easing “foreign workers’ contractual restrictions” under the country’s current sponsorship system known as the “Kafala” system, through the introduction of a Labor Reform Initiative (LRI).

The announcement came right before world leaders met virtually at the G20 Riyadh Summit, which was hosted by Saudi Arabia on November 21-22, 2020. While the LRI has been framed as “reform,” in reality, it appears to have been part of the Saudi regime’s efforts to distract the international community from its human rights abuses in the lead-up to the G20 Summit.

This was only one example of many announcements that the Saudi regime made last year in an effort to project a positive image of itself internationally. Indeed, the Dakar Rally that is currently taking place in Saudi Arabia is yet another instance of the regime’s attempts to whitewash, or sportswash, its abuses at home while creating an illusion of openness and international credibility to the rest of the world.

Background

The Kafala sponsorship system governs the relationship between employers and their foreign migrant workers. It exists, or has existed, in several Arab Gulf states, including Saudi Arabia, Kuwait, Bahrain, Qatar, Oman, and the United Arab Emirates, the six countries in the Gulf Cooperation Council. While each country has its own variation of the system, migrant workers generally must have an employer sponsor (or kafeel) in order to work in these countries and to lawfully remain there; that employer is generally given immense control over the employee under the Kafala system in relation to not only their employment, but also their immigration status, their freedom of movement, and their general wellbeing, a power dynamic which can and has led to financial, psychological, and even physical or sexual abuse. Many of these migrants are low-wage workers who are recruited to work in domestic industries, service jobs, and construction. Given the nature of the Kafala system as one which creates a power dynamic that is ripe for abuse, human rights groups have called for the global abolition (or at least reform) of the system for several decades. On Human Rights Day, December 10, 2020, for example, United States Rep. Raúl M. Grijalva led 29 Members of Congress in calling for the United States to “take the appropriate diplomatic means to encourage GCC member states to combat human trafficking by systematically improving gender equality and migrant labor rights,” and asked that “the U.S. government emphasize that this pursuit cannot fully be realized until the Kafala system has undergone complete reform or is abolished in its entirety.”

With around 10 million migrant workers, Saudi Arabia has one of the largest migrant worker populations in the world, but it has mostly avoided scrutiny of its treatment of this workforce. Employers hold significant power, often requiring workers to work extensive hours, denying wages, and sometimes confiscating passports, which allows the employer to curtail the ability of the worker to leave Saudi Arabia. For domestic and construction workers, the potential for abuse is exacerbated by the fact that these workers are often reliant on the employer for food and housing. The act of withholding an employee’s passport facilitates the potential for blackmail by the employer; unless the worker agrees not to allege abuse or unpaid wages, the employer will not return the passport.

For workers who attempt to escape and do not show up at their jobs, employers can file “runaway” reports, rendering the employees fugitives, subject to imprisonment or deportation. The sponsor is responsible for keeping the employee’s immigration status up to date and can, for any reason, invalidate that status, placing that worker at risk for deportation and other consequences such as the inability to access finances or even obtain medical treatment. For example, if a migrant worker is considered unlawful, they may hesitate to seek medical treatment, in fear of alerting authorities to their irregular immigration status, which may result in their deportation. This type of increased influence may even create an incentive for employers not to properly maintain the lawful status of their workers or to use this as a threat in order to retain further control over their employee. In addition, even where their immigration status has been properly maintained, the worker may feel forced to work while unwell in order to ensure that they do not lose their pay or even their job. In Saudi Arabia, the system also applies to foreign women who marry Saudi nationals, with their husband becoming their kafeel.

The Kafala sponsorship system is also a key component of human trafficking in Saudi Arabia. According to the UN Trafficking in Persons Protocol, “trafficking in persons” includes “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the 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 the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation,” where exploitation can, among other things, include sexual exploitation or forced labor.

Human traffickers in Saudi Arabia exploit primarily foreigners, many of whom have migrated from South and Southeast Asia and Africa. Low-skilled workers are employed in conditions that increase their risk of forced labor, and others are illegally recruited and forced to work in bonded labor or domestic servitude. Ultimately, the most impacted by human rights violations under the Kafala system are domestic workers, female workers, and those from developing nations, being the most vulnerable of workers due to their poor economic circumstances and their gender which subjects them to an increased risk of sexual abuse, while authorities make little effort to suitably investigate these abuses.

For example, under the Kafala system, employers have been known to illegally “buy” or “sell” workers to other employers against their will. Employees have little recourse to prevent this if they wish to remain lawfully inside the country due to their employer’s control over their immigration status. In other cases, employers coerce their workers to work beyond their contractual term and obligations, or even force them into prostitution. In a similar vein, foreign women may be forced into a marriage (or made to remain in a marriage) where they may be subjected to marital rape and other types of abuse by their husband. Some migrant workers may be smuggled into Saudi Arabia unlawfully, including via the Yemeni border, becoming trafficking victims.

The Saudi regime does not effectively protect, nor provide recourse for, migrant workers in relation to these trafficking conditions. For example, the US State Department reported in June 2020 that Saudi Arabia “continued to fine, jail, and/or deport migrant workers for prostitution or immigration violations, many of whom may have been unidentified trafficking victims. In addition, officials regularly misclassified potential trafficking crimes as administrative labor law violations rather than as criminal offenses.”

Labor Relation Initiative: The Basics

According to the Saudi regime, the LRI “seeks to increase the flexibility, effectiveness, and competitiveness of the labor market and raise its attractiveness in line with the best international practices and the Saudi labor law.”

Pursuant to the plans that are due to take place in March 2021, expatriate workers in the private sector will be given greater mobility. A key change will be the ability for workers to leave their jobs on expiry of their contracts and under certain conditions, change their jobs without the initial employer’s consent. Previously, employees had to submit a request to their employer in order to obtain an exit and re-entry visa and leave Saudi Arabia, which the employer was not obligated to grant. The changes to the system mean that employees will be permitted to leave Saudi Arabia by directly submitting a request to the Saudi regime without the need for an employer’s consent. Once that request is approved, their employer will be electronically notified of their departure. Similarly, the worker can also leave Saudi Arabia after their employment contract has ended, without their employer’s consent, and their employer will be electronically notified of the departure. Previously, workers were required to obtain a Final Exit Permit through their employer in order to leave Saudi Arabia even after the conclusion of their employment contract. However, the worker will continue to bear the financial (and other contractual) consequences related to breaking their employment contract.

Under the changes, these workers will have the ability to apply for government services directly. Their contract with employers will also be digitally documented, which will purportedly reduce the disparity between Saudi workers and expatriates. “Runaway” reports will purportedly no longer be used against foreign workers who do not report for duty.

Shortcomings of the “Reform” & Human Rights Implications

While the changes under the new “Labor Relation Initiative” appear on their face to be improvements for the millions of migrant workers in Saudi Arabia, they are not without significant shortcomings.

The Kafala sponsorship system is not being abolished. It will remain in place, meaning that workers will still be required to have employers who act as their sponsors, with those employers retaining significant power over their workers, maintaining the power dynamic that facilitates possible abuse of workers as described above. For instance, employers may continue to be able to cancel and/or renew the residency permits of their workers, leaving the workers as vulnerable to misuse of the system as is currently the case, with employers able to control their lawful immigration status. While transferring employment with notice may be possible, the details of what this notice period will entail are yet to be defined, meaning that it is possible that long and repressive notice periods might be required or that satisfying notice may require the fulfilment of other unknown oppressive conditions. Despite the new reforms, employers will still retain a level of control over their workers that creates an atmosphere conducive to continued abuse and exploitation. It remains unclear whether an employer can report a worker as “absconding,” or cancel their visa before they can request a transfer of employment, potentially leaving the worker undocumented and liable to arrest and detention.

Of further critical concern is the fact that the purported reforms, at this stage, do not appear to apply to 3.7 million domestic workers, personal drivers, farmers, shepherds, security guards, and undocumented workers. While separate regulations which govern domestic workers are reportedly under review, practically speaking, the reforms as currently announced will provide Western nationals and expatriates in the private sector — traditionally those of higher socioeconomic status and who historically may not have been as impacted as domestic workers — with some relief, but do not offer domestic workers any true change. The fact that it is only these types of workers who will see any reform, evidences the fact that Saudi Arabia has deliberately sought to impact a strategic population: i.e. those who may tout the benefits of the reforms globally, helping to bolster Saudi Arabia’s international image, while permitting Saudi Arabia to whitewash the human rights abuses that continue to occur within its Kafala system. This is most evident by the fact that inside the household, the kafeel will still retain ultimate power and control because the reforms do not impact vulnerable domestic workers, a significant percentage of foreign workers in Saudi Arabia. The reforms are therefore discriminatory based on social status, origin, and nationality and do not offer real, substantive reform for a large number of workers in Saudi Arabia.

Indeed, the changes are reminiscent of the reforms made in 2019 (e.g., to allow women to drive) which were touted as significant changes, but were instead largely cosmetic, applying primarily to privileged Saudi women and ensuring the male guardianship system (which applies to Saudi nationals) ultimately remained in place. In fact, after women were given permission to drive, many women’s rights activists who advocated for that very right to drive were arrested, including prominent activist Loujain al-Hathloul, who remains behind bars to this day. The continued existence of that system means that “disobedience” to a male guardian is still punishable under law and despite being legally permitted to drive, for example, Saudi women can still be punished if their male guardian forbids them doing so.

While the changes to the Kafala system may have some impact in amending the relationship between an employer and their employees, the Kafala sponsorship system itself is to stay in place, facilitating the opportunity for similar abuse to that which has already been experienced by employees who find themselves in the system. Again, as with the male guardianship system, the reforms disproportionately neglect the most vulnerable workers such as domestic workers, who can still be subject to immense abuse in the households within which they work. Foreign women in particular, who are often those who work in domestic roles or who may be married to Saudi men, are unlikely to truly benefit from any of the touted “reforms” and will remain in precarious positions regarding their immigration status, their financial status, and their general wellbeing.

Conclusion

While the true effects of the reforms to the Kafala sponsorship system remain to be seen, there is no doubt that there are significant shortcomings in the proposals. Overall, Saudi Arabia stands accused of whitewashing and sportswashing its human rights abuses, including through purported reforms such as the LRI and extravagant sports events such as the Dakar Rally, to encourage much-needed international investment in Saudi Arabia and to increase its standing on the world stage. Without the abolishment of the Kafala sponsorship system in its entirety, it does not appear that migrant workers, particularly the most vulnerable workers such as domestic workers, drivers and farmers, will sufficiently be protected from abuse and potential human trafficking in Saudi Arabia.