Kafala system

Kafala or al - Kafala (Arabic كفالة, DMG Kafala ) refers to a special system of guarantee, which is mainly in the Arab Gulf states for workers and investors from third countries is of great importance. The term for the domestic guarantors (English " sponsor " ) is Kafil / كفيل. There is also a family law form of Kafala that defines what is common in Islamic states procedures for legal child recording. So to distinguish the shapes of the Kafala that affect the labor or business, from the Kafala, which refers to the acquisition of a guardianship and foster care for a child in family law sense ( see Kafala / legal recording of a child ).

There are three forms of Kafala in the former sense, which concern the two work and residence rights, and the third form is a limitation of foreign direct investment and business activities.

  • 2.1 problems

Labour

The dependence of the Arab Gulf states of foreign workers is extremely high. Foreigners make in Saudi Arabia about 30 percent of the total population, but 70 percent of the workforce. The proportion of foreigners in the Gulf states such as Qatar or Dubai is sometimes higher than 90 percent. The monitoring of issues of residence and employment law can not be guaranteed by government agencies and are delegated by the Kafala system to the population to this extent. This means that every foreign worker a local guarantor required - usually it involves the employer. Likewise, a local institution ( ministries, state companies, universities, etc.) act as guarantor, which is the case especially in highly skilled workforce.

The guarantor or Kafil is obliged for entry formalities and state registration to take care and to ensure compliance with the contractual formalities. To guarantee this, the passport of the foreign labor force is drawn usually by the Kafil and being returned to them only after the contract end. The duration of such a contract is usually two to five years. After the expiry of the contract, either the departure or deportation, or the contract extension is carried out by both sides. With the extension of the contract may paradoxically occur a deterioration of working conditions.

See also the section migrants in the article United Arab Emirates, the articles on demography and labor migration in Dubai and the articles on migrant workers in Qatar.

Here again, the distinction between practices in business and management are taken in the broadest sense and domestic workers on the other. While the former are at least partially protected by a rudimentary workers' rights ( which should not be overestimated, see below under " issues " ), domestic workers are dispatched its guarantor almost entirely and are in an almost slave-like dependency. In the comparatively progressive Kuwait, for example, in contrast to " normal" workers not the Labour and Social Affairs ( which migrant workers legal assistance offered ), but the Home Office responsible for them.

Problems

The Kafala system was only fixed by law, as it was already common practice. This creates considerable uncertainty for workers, since only legalized by the subsequent approximation of the laws of the practice outlined a vague common law, but no coherent legislation was created. Many important questions remain unanswered, such as a legal definition of the relationship between migrants and Kafil.

Affected by the disadvantages of the Kafala system are a few exceptions (eg, the French professional footballer Zahir Belounis ) especially less skilled workers. Western workers are not or only slightly affected by the difficulties involved in the rule. Labor migrants from Arab (non- golf ) States are from kafala system dependent, however, have to suffer especially at higher qualification (eg in education or health ) and because of the common language on average, less risk less or relatively more likely a legal procedure. Domestic workers from non-Arab and / or non-Muslim countries (mainly from Pakistan, India, Philippines ) are the most disadvantaged.

The problem is already the agreement with non-Arab workers, who usually takes place in their home country. Valid Instance alone who wrote in Arabic documents, which may differ materially from those contracts in English or the native language of workers. A national examination of foreign language documents and enforcement of offenses remain the single case in spite of existing laws.

In case of dispute the Kafil is always strong advantage because it can cause the expulsion of labor power. Breach of contract ( lower pay, longer hours, no holidays ) are therefore rarely brought by the employees for viewing, as they fear for their jobs. A legal procedure is in some states, although possible and promising, but he is the termination (and thus removal ) lead to why labor law procedures are considerably less frequent than violations of labor. Likewise, it is the employees are not allowed to change employers without the consent of its guarantors. This also deprives the foreign labor even at relatively high qualification is an important part of their negotiation.

Although it is the locals strictly forbidden to be Kafil for a migrant, they do not employ and the resulting "free" entering the labor market, there is a roaring trade with such licenses, which is mutually beneficial: a small dependence the employee and an extra income without any effort on the side of the locals.

In addition, cases of " runaway " domestics or other employees are by no means rare. This stay in the country illegally ( the exit is not possible for them because of lack of documents ) and look at the informal labor market for employment. Due to the high number of unreported cases of these persons residing illegally in the country, government amnesties be adopted from time to time. These will mainly be used to register these people and to allow them to leave.

Kafala in foreign direct investment and business activities

Starting a business or investing in the local economy is severely restricted in the Arab Gulf States. The kafala system serves as a special form of economic protectionism and concerns small businessmen alike as multinationals. This manifests itself in the fact that no company may include foreign outside of designated free trade zones to more than 49 percent of shareholders.

A local Kafil thus for starting a business always required, which holds formally or de facto 51 percent of the company shares in the hand. The former means practically that there is a local " sleeping partner ", although it holds 51 percent of the shares, but does not interfere in the business activities and does not use its voting right; it just has his name available and signed the final contracts and papers. In return, he receives a share of profits.

Even large corporations and retail chains can not sell their products as they see fit, but do so only through a local intermediary.

Problems

The problem here especially when the domestic shareholder is not a " sleeping partner " more or wants to be. This can, for example, through the sale of shares in another locals, death of proportion Partners ( heir of the Shares ) or simply occur by a change of mind of the "sleeping partners". The calls of a higher profit-sharing or the right of scrutiny can sometimes lead to significant disadvantages in the economic development of the company. Due to the maximum of 49 percent shares in the company, the foreign partner has no legal recourse against such a change in the terms and conditions.

Point of view of the locals

As already mentioned the kafala system was already before the legal commit part of customary law. Possible, but not guaranteed, is the historical derivation of this Gebarens from the Bedouin tradition. In this context, however, it represented either part of the hospitality or an agreement made ​​and secured, for example, the safe abode or traversing an area ( safe conduct ).

Secured contrast, the current perspective of the locals of this scheme, as, for example, brings a woman from Kuwait expressed: "Look at it [ kafala ] as to expression of our fears and helplessness. We are few, They Are many; . we can not afford to be trusting " ( German: ". . Consider it [ kafala ] as an expression of our fears and our helplessness, we are few, they are many, and we can not afford not to trust ' ) The local people of the Gulf states see themselves - quite the contrary, as the design of the kafala legislation might seem - not in an extraordinary position of power. Rather outweigh fears of alienation, loss of tradition, customs and identity and a sense of siege. The military and numerically relatively weak Gulf states with their extraordinary riches press among other things, extremely asymmetric legislation of their uncertainty, which is significantly enhanced by the sweeping -like changes in their environment and society.

Another argument is that you as a native have no way to ascertain, prior to entry, whether recruited through an agency worker meets their own expectations - exams or job interviews are not possible. With the disappointment of expectations, especially if the work force as in the case of domestic workers living under your own roof, the risk of frustration is very high. Not to be underestimated are also misunderstandings that result from inadequate languages ​​and sometimes extremely large cultural differences.

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