Defining this thing called Khafala: The Middle East Narrative
Every Overseas Filipino Worker (OFW) in any Arab Middle East country has a narrative on Khafala. Khafala
originally means “to guarantee” or “to take care of” in Arabic. In the late twentieth century, the term became more technical and expanded to include “a system of fixed-term sponsorship of migrant workers” particularly in the Arab States of the Middle East.
The history of the Khafala system is relatively the same across the Arab region. It all began with the discovery of oil in the early to mid 1900s, which dramatically ushered in the region’s own “industrial revolution”. The “oil boom” and its consequential rapid economic development proved to be the catalysts for the need for more workers with skill sets and desired labor services that were not locally available. Thus, the beginning of the story of the Middle East’s rise to prosperity and the influx of migrant workers en masse that came along with it.
Despite the exponential economic progress in the Middle East, its Arab societies remained conservative and adamant to the possible changes/adjustments vis-à-vis the vast population of migrant workers. Acceptance as equals was not readily an option. Further on, Arab society demanded accountability and liability for the migrant workers and these duties logically befell their respective employers. However, the employers did not accept these responsibilities without any form of control. As a result, the Khafala system otherwise known as the “sponsorship system,” was born.
To further understand Khafala, it may be defined as follows: The traditional sponsorship system existing in Arab countries in the Middle East where the sponsor (khafeel) has absolute control over his or her migrant worker. The migrant worker is substantially deprived of mobility and is rendered completely dependent on his or her employer in, but not limited to, the following: return to his or home country; transfer to another employer; and access to better working/living conditions. As officially reported and recorded in multiple occasions, Khafala often leads to abuse largely because of the unfortunate denomination whenever the migrant worker is regarded as mere property of the employer – a lesser individual by all rights and respect. International human rights groups and migrant rights advocates have slammed Khafala as a form of slavery and a human rights violation.
Academics and migration experts from the Arab world will often explain that Khafala evolved or devolved from an immigration and labor issue to a cultural issue. In Arab countries where 35% - 90% of the total population are composed of migrant workers, many local citizens presumably feel that control over the migrant population is both a paramount and a God-given right. Despite the undeniable economic contribution and large population percentile of migrant workers, the systematic control of their population by their host States remain a priority. Khafala degenerated to solely being about in control.
The lack of mobility in Khafala can be manifested in the following ways:
1) The inability of the migrant to move to another job without the explicit consent of the employer either during or even after the permit/visa/contract have expired;
2) The inability to move to another job even if the wages were not paid or the contract was breached by the employer. A lengthy legal procedure is often needed to recover unpaid wages and fulfillment of contract obligations;
3) After the end of contract with the original employer and the migrant’s departure from the country of destination, his or her inability to return to the country of destination to work with another employer without the explicit consent of the original employer (this rule exists in at least two Gulf Cooperation Council (GCC) Countries);
4) The inability to leave the country of destination temporarily or permanently without the consent of the original employer;
5) The inability to leave the country of destination without the consent of the original employer even when the migrant has been abused physically, verbally, emotionally or sometimes even sexually.
With the inhumane conditions, hardships, and abuses brought forth by Khafala, many OFWs, particularly the most vulnerable household service workers (HSWs), escape from their employers/sponsors and run to the Philippine Embassy/Consulate General shelters in hopes of rescue and eventual return to the Philippines. Here, the battle begins because more often than not, their employers refuse to let them leave without finishing their contract or settling their deployment cost. Often in negotiations involving HSWs, the employers stonewall unless they are presented with overwhelming evidence of illegal conduct or abuse. There are also numerous times that employers resort to the underhanded tactic of filing theft cases against HSWs to prevent their departure. And, in most Arab States, migrants have to possess exit visas that can only be obtained with the blessing of their khafeel.
While the Khafala system has led to a lot of abuses, why do Arab countries have difficulty in abolishing or reforming it? Why is it so important for employers to have control over the labor mobility of their employees? The answer is simply because the system provides the employer a myriad of advantages that will be lost when Khafala is abolished. Moreover, it will cost employers more financially if the system is removed.
Among the advantages of Khafala to employers are:
1) The absence of mobility removes from the migrants the power to negotiate. It keeps the wages low even as the migrant’s skill, experience, and market value goes up;
2) The absence of mobility allows for lesser employee retention practices required. The employer need not make the worker happy. Worker satisfaction is an option but not a necessity. Plus work and living conditions need not be up to standard;
3) The absence of mobility allows for keeping valuable skills and “trade secrets” from going to competitors.
Those above-named are just some of the few practices that many employers see as inherent to them as the khafeel. These practices therefore make migrants less expensive and pliable compared to the local population. Hence, employers prefer to hire migrants than their own citizens. This practice has resulted in the unemployment of the citizens of the host countries or “countries of destination”. While there have been moves in some Middle East countries prohibiting the hiring of migrants in certain industries to be able to prioritize their own citizens, the fact remains that most employers still prefer to hire migrants because it is proven to be more cost effective and easier to manage.
Some of the sponsors have even taken their power of control over their migrants too far. And, this has resulted in:
1) Contract Substitution – This practice happens upon the migrant’s arrival in the country of destination. The migrant is left with no choice but to accept this change in contract because he or she cannot change employers without the consent of his or her sponsor.
2) Non-payment of wages – While earned wages and other contractual benefits are guaranteed by laws, access to recourse is not easy since the only legal way to remain in the country of destination is to remain under the sponsorship of the employer the migrant is suing. Hence, the migrant who goes to court often becomes an irregular worker since he or she loses his or her status as a documented worker.
3) Subpar wages – Migrants agree to wages while still in their countries of origin based on the skills market value in their own countries. However, once they reach the country of destination, they realize that the wages they agreed to are subjected to a lower than expected/promised valuation in what their skills are really worth in the country of destination. Often, the income promised to them is less than adequate for the cost of living in the country of destination.
4) Poor, dangerous, inhumane working and living conditions – Some household service workers do not have their own bedrooms and many are deprived of privacy. For other workers, their accommodation is small, cramped, and unsafe especially during this COVID-19 pandemic.
5) Profiteering to allow mobility – Some sponsors demand payment to allow mobility or exit in the country of destination. The poor migrant worker is held hostage – where he or she has to pay amounts arbitrarily set and demanded by the employer in order to agree to mobility or return home.
6) Absconding Reports – Because of the traditional sponsorship system’s embryonic relationship, once the sponsor reports to the authorities that the migrant worker has run away or absconded from his or her employer, the migrant is immediately placed in an illegal and precarious position. The report is used for further profiteering (demanding money to have it removed); or as a deterrent to other workers; or setting as an example for other workers to stop making demands.
7) Unrealistic contract conditions and legal action against migrant workers
Unfounded compensation clauses in the contract for costs that either are the responsibility of the employer (permits and visas), or where the worker has no part in (fees of recruitment agencies) or compensation for unspecified losses;
7.2) Non-competition clauses in the contract which bars the worker from working for a business in the same economic activity as the sponsor which is very unrealistic for semi-skilled workers and from the retail and hospitality services; and
7.3) Unreasonable notice periods like six (6) months “lock in period” before leaving the current given job for other jobs.
Because of the sad and undeniable truth that Khafala is often being used to perpetuate slavery and abuse in the Middle East by primarily restricting migrants’ labor mobility, the Philippines fought for the inclusion of the anti-Khafala provisions in the Global Compact for a Safe, Orderly and Regular Migration (GCM). The GCM is the first, intergovernmental negotiated document, prepared under the auspices of the United Nations, to cover all dimensions of international migration in a holistic and comprehensive manner which States adopted in December 2018.. This would not have been possible if not for the strong support of a GCC country like the Kingdom of Bahrain; the Catholic Church through the Holy See; and the like-minded group of countries in the GCM negotiations. Objectives 5 and 6 of the GCM address the ill effects of an abused Khafala system. To wit:
xxx
OBJECTIVE 5: Enhance availability and flexibility of pathways for regular migration
21. We commit to adapt options and pathways for regular migration in a manner that facilitates labour mobility and decent work reflecting demographic and labour market realities, optimizes education opportunities, upholds the right to family life, and responds to the needs of migrants in a situation of vulnerability, with a view to expanding and diversifying availability of pathways for safe, orderly and regular migration.
xxx
OBJECTIVE 6: Facilitate fair and ethical recruitment and safeguard conditions that ensure decent work
22. We commit to review existing recruitment mechanisms to guarantee that they are fair and ethical, and to protect all migrant workers against all forms of exploitation and abuse in order to guarantee decent work and maximize the socioeconomic contributions of migrants in both their countries of origin and destination. To realize this commitment, we will draw from the following actions:
xxx
g) Develop and strengthen labour migration and fair and ethical recruitment processes that allow migrants to change employers and modify the conditions or length of their stay with minimal administrative burden, while promoting greater opportunities for decent work and respect for international human rights and labour law.
h) Take measures that prohibit the confiscation or non-consensual retention of work contracts, and travel or identity documents from migrants, in order to prevent abuse, all forms of exploitation, forced, compulsory and child labour, extortion and other situations of dependency, and to allow migrants to fully exercise their human rights.
It is worth noting that all the Arab States in the Middle East adopted GCM. While it is a non-binding document, it sets the minimum standards for States on how to deal with migrant workers. By adopting the GCM, States officially recognize it as a benchmark of migrant and migrant rights protection. To some, it might be aspirational but it still comes across as a declaration on their part that the GCM standards must be met and achieved.
Hope springs eternal in the quest for the abolition and/or reform of khafala in the Middle East. The notable changes instituted in Bahrain through its flexi-visa system and its labour reforms; the abolition of the exit visa in Qatar; and the protection measures in UAE are just a few of the welcome changes that are seen in the region. It is often said that the journey of a thousand miles begins with a single step. This journey in abolishing khafala have come a long way. The momentum is here. This is the new civil rights movement. The pathway to freedom is now being cleared, one momentous step at a time.
The history of the Khafala system is relatively the same across the Arab region. It all began with the discovery of oil in the early to mid 1900s, which dramatically ushered in the region’s own “industrial revolution”. The “oil boom” and its consequential rapid economic development proved to be the catalysts for the need for more workers with skill sets and desired labor services that were not locally available. Thus, the beginning of the story of the Middle East’s rise to prosperity and the influx of migrant workers en masse that came along with it.
Despite the exponential economic progress in the Middle East, its Arab societies remained conservative and adamant to the possible changes/adjustments vis-à-vis the vast population of migrant workers. Acceptance as equals was not readily an option. Further on, Arab society demanded accountability and liability for the migrant workers and these duties logically befell their respective employers. However, the employers did not accept these responsibilities without any form of control. As a result, the Khafala system otherwise known as the “sponsorship system,” was born.
To further understand Khafala, it may be defined as follows: The traditional sponsorship system existing in Arab countries in the Middle East where the sponsor (khafeel) has absolute control over his or her migrant worker. The migrant worker is substantially deprived of mobility and is rendered completely dependent on his or her employer in, but not limited to, the following: return to his or home country; transfer to another employer; and access to better working/living conditions. As officially reported and recorded in multiple occasions, Khafala often leads to abuse largely because of the unfortunate denomination whenever the migrant worker is regarded as mere property of the employer – a lesser individual by all rights and respect. International human rights groups and migrant rights advocates have slammed Khafala as a form of slavery and a human rights violation.
Academics and migration experts from the Arab world will often explain that Khafala evolved or devolved from an immigration and labor issue to a cultural issue. In Arab countries where 35% - 90% of the total population are composed of migrant workers, many local citizens presumably feel that control over the migrant population is both a paramount and a God-given right. Despite the undeniable economic contribution and large population percentile of migrant workers, the systematic control of their population by their host States remain a priority. Khafala degenerated to solely being about in control.
The lack of mobility in Khafala can be manifested in the following ways:
1) The inability of the migrant to move to another job without the explicit consent of the employer either during or even after the permit/visa/contract have expired;
2) The inability to move to another job even if the wages were not paid or the contract was breached by the employer. A lengthy legal procedure is often needed to recover unpaid wages and fulfillment of contract obligations;
3) After the end of contract with the original employer and the migrant’s departure from the country of destination, his or her inability to return to the country of destination to work with another employer without the explicit consent of the original employer (this rule exists in at least two Gulf Cooperation Council (GCC) Countries);
4) The inability to leave the country of destination temporarily or permanently without the consent of the original employer;
5) The inability to leave the country of destination without the consent of the original employer even when the migrant has been abused physically, verbally, emotionally or sometimes even sexually.
With the inhumane conditions, hardships, and abuses brought forth by Khafala, many OFWs, particularly the most vulnerable household service workers (HSWs), escape from their employers/sponsors and run to the Philippine Embassy/Consulate General shelters in hopes of rescue and eventual return to the Philippines. Here, the battle begins because more often than not, their employers refuse to let them leave without finishing their contract or settling their deployment cost. Often in negotiations involving HSWs, the employers stonewall unless they are presented with overwhelming evidence of illegal conduct or abuse. There are also numerous times that employers resort to the underhanded tactic of filing theft cases against HSWs to prevent their departure. And, in most Arab States, migrants have to possess exit visas that can only be obtained with the blessing of their khafeel.
While the Khafala system has led to a lot of abuses, why do Arab countries have difficulty in abolishing or reforming it? Why is it so important for employers to have control over the labor mobility of their employees? The answer is simply because the system provides the employer a myriad of advantages that will be lost when Khafala is abolished. Moreover, it will cost employers more financially if the system is removed.
Among the advantages of Khafala to employers are:
1) The absence of mobility removes from the migrants the power to negotiate. It keeps the wages low even as the migrant’s skill, experience, and market value goes up;
2) The absence of mobility allows for lesser employee retention practices required. The employer need not make the worker happy. Worker satisfaction is an option but not a necessity. Plus work and living conditions need not be up to standard;
3) The absence of mobility allows for keeping valuable skills and “trade secrets” from going to competitors.
Those above-named are just some of the few practices that many employers see as inherent to them as the khafeel. These practices therefore make migrants less expensive and pliable compared to the local population. Hence, employers prefer to hire migrants than their own citizens. This practice has resulted in the unemployment of the citizens of the host countries or “countries of destination”. While there have been moves in some Middle East countries prohibiting the hiring of migrants in certain industries to be able to prioritize their own citizens, the fact remains that most employers still prefer to hire migrants because it is proven to be more cost effective and easier to manage.
Some of the sponsors have even taken their power of control over their migrants too far. And, this has resulted in:
1) Contract Substitution – This practice happens upon the migrant’s arrival in the country of destination. The migrant is left with no choice but to accept this change in contract because he or she cannot change employers without the consent of his or her sponsor.
2) Non-payment of wages – While earned wages and other contractual benefits are guaranteed by laws, access to recourse is not easy since the only legal way to remain in the country of destination is to remain under the sponsorship of the employer the migrant is suing. Hence, the migrant who goes to court often becomes an irregular worker since he or she loses his or her status as a documented worker.
3) Subpar wages – Migrants agree to wages while still in their countries of origin based on the skills market value in their own countries. However, once they reach the country of destination, they realize that the wages they agreed to are subjected to a lower than expected/promised valuation in what their skills are really worth in the country of destination. Often, the income promised to them is less than adequate for the cost of living in the country of destination.
4) Poor, dangerous, inhumane working and living conditions – Some household service workers do not have their own bedrooms and many are deprived of privacy. For other workers, their accommodation is small, cramped, and unsafe especially during this COVID-19 pandemic.
5) Profiteering to allow mobility – Some sponsors demand payment to allow mobility or exit in the country of destination. The poor migrant worker is held hostage – where he or she has to pay amounts arbitrarily set and demanded by the employer in order to agree to mobility or return home.
6) Absconding Reports – Because of the traditional sponsorship system’s embryonic relationship, once the sponsor reports to the authorities that the migrant worker has run away or absconded from his or her employer, the migrant is immediately placed in an illegal and precarious position. The report is used for further profiteering (demanding money to have it removed); or as a deterrent to other workers; or setting as an example for other workers to stop making demands.
7) Unrealistic contract conditions and legal action against migrant workers
Unfounded compensation clauses in the contract for costs that either are the responsibility of the employer (permits and visas), or where the worker has no part in (fees of recruitment agencies) or compensation for unspecified losses;
7.2) Non-competition clauses in the contract which bars the worker from working for a business in the same economic activity as the sponsor which is very unrealistic for semi-skilled workers and from the retail and hospitality services; and
7.3) Unreasonable notice periods like six (6) months “lock in period” before leaving the current given job for other jobs.
Because of the sad and undeniable truth that Khafala is often being used to perpetuate slavery and abuse in the Middle East by primarily restricting migrants’ labor mobility, the Philippines fought for the inclusion of the anti-Khafala provisions in the Global Compact for a Safe, Orderly and Regular Migration (GCM). The GCM is the first, intergovernmental negotiated document, prepared under the auspices of the United Nations, to cover all dimensions of international migration in a holistic and comprehensive manner which States adopted in December 2018.. This would not have been possible if not for the strong support of a GCC country like the Kingdom of Bahrain; the Catholic Church through the Holy See; and the like-minded group of countries in the GCM negotiations. Objectives 5 and 6 of the GCM address the ill effects of an abused Khafala system. To wit:
xxx
OBJECTIVE 5: Enhance availability and flexibility of pathways for regular migration
21. We commit to adapt options and pathways for regular migration in a manner that facilitates labour mobility and decent work reflecting demographic and labour market realities, optimizes education opportunities, upholds the right to family life, and responds to the needs of migrants in a situation of vulnerability, with a view to expanding and diversifying availability of pathways for safe, orderly and regular migration.
xxx
OBJECTIVE 6: Facilitate fair and ethical recruitment and safeguard conditions that ensure decent work
22. We commit to review existing recruitment mechanisms to guarantee that they are fair and ethical, and to protect all migrant workers against all forms of exploitation and abuse in order to guarantee decent work and maximize the socioeconomic contributions of migrants in both their countries of origin and destination. To realize this commitment, we will draw from the following actions:
xxx
g) Develop and strengthen labour migration and fair and ethical recruitment processes that allow migrants to change employers and modify the conditions or length of their stay with minimal administrative burden, while promoting greater opportunities for decent work and respect for international human rights and labour law.
h) Take measures that prohibit the confiscation or non-consensual retention of work contracts, and travel or identity documents from migrants, in order to prevent abuse, all forms of exploitation, forced, compulsory and child labour, extortion and other situations of dependency, and to allow migrants to fully exercise their human rights.
It is worth noting that all the Arab States in the Middle East adopted GCM. While it is a non-binding document, it sets the minimum standards for States on how to deal with migrant workers. By adopting the GCM, States officially recognize it as a benchmark of migrant and migrant rights protection. To some, it might be aspirational but it still comes across as a declaration on their part that the GCM standards must be met and achieved.
Hope springs eternal in the quest for the abolition and/or reform of khafala in the Middle East. The notable changes instituted in Bahrain through its flexi-visa system and its labour reforms; the abolition of the exit visa in Qatar; and the protection measures in UAE are just a few of the welcome changes that are seen in the region. It is often said that the journey of a thousand miles begins with a single step. This journey in abolishing khafala have come a long way. The momentum is here. This is the new civil rights movement. The pathway to freedom is now being cleared, one momentous step at a time.
Usec Sarah Arriola
Department of Foreign Affairs Office of the Undersecretary for Migrant Workers’ Affairs (OUMWA)
Contact Sarah