Author: Osameh Gnaei
Gnaei, Osameh, 2024 Temporary migrant workers in Saudi Arabia: Kafala system and protection of migrant workers, Flinders University, College of Business, Government and Law
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The Kafala system in Saudi Arabia is a system of engagement of foreign migrant workforce, where migrant workers are bound to a sponsor, usually the employer, known as ‘kafīl’. The Kafala system has become a backbone of Saudi economy, due to the large contribution from Kafala workforce. Despite this, the system has faced significant controversy in recent times, with many raising concerns on its impact to the rights of migrant workers.
While various elements of public and private regulation of the Kafala system have already been assessed as rights-restricting, this thesis looks at the effects of the Kafala system on migrant workers’ rights. Particularly, the rights concerning freedom of movement, freedom of association and, the principles of non-discrimination and (formal as well substantive) equality. This thesis adds to the existing discussion on the impact of the Kafala system on migrant workers, by questioning: “To what extent are the recent reforms to Saudi Arabia’s Kafala system legitimate, compatible with international instruments and compatible with Islamic law, for the purposes of protecting migrant workers?”
In answering this question, this thesis has critically evaluated aspects of governance and enforcement of migrant workers’ rights through the lens of three distinct, but intersecting, frameworks of law.
Firstly, the Kingdom’s obligations under international (treaty and customary) law were assessed, which led to mixed results. There is some indication that the Kingdom has begun to take steps to implement its obligations on specific issues such as labour protection. However, Saudi Arabia has been reluctant to bind itself formally to any international obligations that may dilute its sovereignty, including its authority to set and enforce its own domestic labour and associated immigration policies. Despite this, there is evidence that Saudi Arabia and its Gulf neighbours have become more responsive to global “rights” discourses as they seek further integration into the international economic order.
Secondly, the constitutionally mandated principles of Sharia were assessed, which showed that there are constitutional and religious-normative grounds for the further reform, or potential abolition, of the Kafala system. While there is significant internal debate among Islamic jurists around the existence and basis of civil and political freedoms under Islamic law, this thesis has determined that Islamic values of equity justice are anathema to the most exploitative aspects of the Kafala system.
Thirdly, the relevant Saudi regulations and policies were examined, leading to a finding that the new reforms do appear to bring Saudi Arabia’s domestic law into further alignment with international standards, including respect for freedom of movement. The Kingdom has taken significant steps to eliminate or relax the most rights-violating elements of the former Kafala system. Among the most recent reforms, is the dual system of labour rights protection among migrant workers and Saudi nationals. This is a structural function of the Kafala system, which has been reformed to introduce greater equity in terms of pay and other in-work protections. Many of the most problematic aspects of the Kafala process have been repealed, including the near absolute requirement of sponsor consent for the most basic freedoms, including the ability to change jobs and leave the country. Key challenges were identified, many intimately related to the relationship between law and political power under the Kingdom’s constitutional framework.
Ultimately, this thesis shows that the Kafala system, in its current state, is showing a positive movement toward a greater alignment with international law, Sharia law and Saudi Arabia’s labour law regulations. Though, there are many issues with the system concerning the rights of migrant workers. This thesis argues that deep reform of the Kafala system is still required to provide better conditions for migrant workers.
Keywords: Saudi Arabia,Kafala System,Migrant Workers.
Subject: Population and Human Resources thesis, International Management thesis
Thesis type: Doctor of Philosophy
Completed: 2024
School: College of Business, Government and Law
Supervisor: Dr. Sanzhuan Guo