Rhacel Salazar Parreñas & Rachel Silvey. Population Space & Place. Volume 27, Issue 5, July 2021.
Introduction
Scholars have called attention to the restrictive conditions that the kafala system imposes on migrant domestic workers in Arab States (Jureidini, 2010; Mahdavi, 2011; Pande, 2012, 2013). The kafala, as a regime of migrant governance, limits the citizenship of migrant workers as it binds them to the sole employ of an employer‐sponsor whose permission they must secure in order to terminate their employment (Longva, 1999). While various countries have implemented sweeping reforms to the kafala system for other labour sectors, domestic workers remain bound to the system. The reforms have enabled construction workers, for example, to switch employers prior to the completion of a labour contract, if they can reach a mutual agreement with their employer. However, migrant domestic workers remain bound to the kafala system, which some observers have characterised as akin to “slavery” (Jureidini & Moukarbel, 2004), “structural violence” (Mahdavi, 2011; Pande, 2013), and “labour trafficking” (Mahdavi, 2011).
In this article, we analyse the disciplining of migrant domestic workers into servitude not as a direct result of the kafala system itself, but as a consequence of the immigration laws that mobilise the kafala as one element of a regime of discipline directed at migrant workers. We seek to examine the forces that propel migrant domestic workers into remaining employed within this system and acquiescing to subpar labour conditions. According to the prevailing literature, the kafala system invites rampant abuse because workers are not free to switch employers (Anderson, 2000; Fernandez, 2013; Jureidini, 2010; Mahdavi, 2011). Extending this critique of the kafala, we examine how the legal immigration regime, which keeps migrant domestic workers under constant threat of deportation and contract cancellation, pressures migrant domestic workers into persistent servitude. In so doing, we join Vora and Koch (2015) and Lori (2019) in de‐exceptionalising the Gulf migration system to underscore similarities in the UAE’s exclusion of temporary labour from citizenship rights.
This article begins with a global overview of migrant domestic work followed by a discussion of our methods and data on domestic workers in the United Arab Emirates. We then discuss the literature on the kafala system, which we establish focuses primarily on the conditions of documented migrants who work within its boundaries. Expanding the scope of our understanding of the kafala system, this article shifts from providing a description of conditions associated with the kafala system to examining the legal context that enforces the system. It shows that undergirding the kafala is a punitive system that discourages domestic workers from exceeding its boundaries. Disciplining the population of migrant domestic workers into remaining within the boundaries of the kafala are the threats of their contract cancellation by employers and illegalisation by the state.
Global Overview of Migrant Domestic Work
There are approximately 11.5 million migrant domestic workers across the globe, the majority—8.45 million—being women (ILO, 2015a). The largest share of them, 27.4%, work in Arab States, followed by 20% in Europe and 19.4% in East Asia and the Pacific (ILO, 2015a). In the Arabian Peninsula, the vast majority of migrant women—60%—are in fact domestic workers (ILO, 2015a). Most migrant domestic workers in this region come from Southeast Asia, specifically Indonesia and the Philippines (Silvey , 2019), but there are also sizeable numbers from South Asia (Ahmad, 2017) and Africa (Fernandez, 2013; Mahdavi, 2011). Of the estimated 3.1 million migrant domestic workers in the region, the largest number can be found in the Kingdom of Saudi Arabia, estimated at nearly one million, followed by an estimated 750,000 in the UAE, 620,000 in Kuwait, 250,000 in Lebanon, and 100,000 in Bahrain (ILO, 2015b).
While migrant domestic workers are located across the globe, labour conditions differ vastly across destinations and regions. According to Anju Mary Paul (2012), the destinations of domestic workers can be divided into a four‐tier hierarchy with destinations in the Arabian Peninsula, such as the Kingdom of Saudi Arabia and UAE, in the lowest or least desirable tier, followed by Singapore and Malaysia in the third‐tier, Taiwan and Hong Kong in the second‐tier, and finally Canada and Italy belonging in the highest tier. In this hierarchy, labour conditions such as salary improve across tiers. While the average starting salary for Filipino migrant domestic workers offered in the UAE is 800 to 1000 dirham (US$220 to 275), it is US$365 in Singapore, US$500 in Hong Kong, US$700 in Taiwan, and upwards of US$1000 in Canada and Italy (Parreñas, 2015). The cost for entry into these destinations accordingly varies with higher tier destinations costing more. For example, while migrant recruitment agencies charge prospective migrant domestic workers US$1000 to secure a labour contract in Singapore, they charge US$3000 for a contract in Hong Kong, US$5000 in Taiwan, US$7000 in Israel, and upwards of US$8000 in either Canada or Italy (Author, 2015). In contrast, prospective migrant domestic workers usually pay no more than US$115 to secure employment in the Arabian Peninsula.
Methods and Data
The data presented here are based on a study of Indonesian and Filipino domestic workers in the UAE. This involved 85 in‐depth semi‐structured interviews conducted with migrant Filipino domestic workers and 79 with Indonesian domestic workers in Dubai in 2013, 2014, and 2015, as well as 35 in‐depth semi‐structured interviews with employers. We identified potential research participants via quota sampling directed at inclusion of domestic workers with and without a day off, documented and undocumented workers, runaways housed at migrant shelters, and domestic workers employed in a diversity of households, including Emirati, other Arab, South Asian, Iranian, Filipino, and European. We likewise conducted interviews with a diverse group of employers including Emirati, other Arabs, Indians, Iranians, and Westerners. While the UAE government has been known to ban researchers from entering the country, we were permitted to carry out the project. (Abdi, 2015).
Migrant domestic workers in the UAE come from lower income backgrounds than their counterparts in other destinations. In contrast to domestic workers in Hong Kong (Constable, 2007), Israel (Liebelt, 2011), and Taiwan (Lan, 2006), they are less likely to have completed high school. Among Filipino interviewees, only two completed a 4‐year college degree, and among Indonesians, none had completed high school. Both Filipino and Indonesian domestic workers come from areas with few labour market opportunities. Most hail from farming or fishing villages with a few having migrated to urban centres in their youth to work as street peddlers or domestic workers. Our interviewees ranged from the age of 21 to 64 years old with the majority in their 30s.
We selected the UAE as our primary site for several reasons. First, there are a number of existing studies focused on this country (e.g., Abdi, 2015; Ali, 2010; Kanna, 2011; Kathiravelu, 2016; Mahdavi, 2011). Second, it is a known migration hub, allowing us to analyse a key node in the international migration system (Ali, 2010). Third, it provides a distinctive case for exploring the emergent patterns of Global South migration. Semi‐structured interviews with domestic workers, almost all of which were digitally recorded (n = 161), and interviews with employers addressed a range of issues concerning labour experiences and employee-employer relationships that allow us to examine how the terms of the kafala shape the labour conditions of migrant domestic workers.
The Literature on the Kafala System
The kafala system establishes the terms of legal residency for migrant domestic workers in Arab States as it centrally governs the dynamics of their relationship with employers. Under the kafala system, domestic workers are without labour market or employment flexibility as they are technically bound in a relationship of servitude to their kafeel or sponsor (Longva, 1999). As bound laborers, they are required to remain employed solely by their sponsor during the duration of their contract, which in the UAE typically extends to 1 year for foreign employers and 2 years for locals, that is, Emirati. They must secure the permission of their sponsor in order to terminate or transfer employment (Longva, 1999). They also cannot enter or exit the country without the approval of their sponsor. For domestic workers, the kafala system and their relationship of subordination and dependence on their sponsor are also aggravated by the live‐in condition of their employment (Jureidini 2010; Pande, 2013). Finally, absconding is considered a crime that is punishable by incarceration and deportation even for domestic workers who are unsatisfied with their job or abused at work.
While some scholars have examined the governance of migrant domestic work in Arab States, they have done so largely from the perspective of sending states (Fernandez, 2013; Rodriguez, 2011). Questions of governance concerning receiving states remain absent as the literature has instead provided a “substantialist perspective” (Desmond, 2014) on the experiences of migrant domestic workers in the region, one that analytically implies a uniform experience among them. According to Desmond (2014), the provision of a substantialist perspective “promotes a kind of “groupism,” an intellectual habit that ostensibly recognises the “social construction” of groups but nonetheless fails to document the process or the everyday maintenance of group construction” (p. 552). In other words, this perspective is one that would enumerate a set of conditions that are understood as “effects” on migrants rather than as elements of a broader legal context which migrants navigate.
Accordingly, the literature on migrant domestic workers in the region has largely focused on the question of how the kafala system shapes their labour with the consensus being that it elicits substandard employment conditions. Early work described how the contractually bound position of domestic workers resulted in their exploitation including the violation of their labour contracts and absence of recognition of their labour rights (e.g., minimum wage) (Ismail, 1999; Jureidini & Moukarbel, 2004). Scholars have since attempted to provide theoretical concepts that capture this range of exploitations. Bina Fernandez (2014) who writes on Ethiopian domestic workers theorises the kafala system as compounding of alienated labour. Writing on domestic workers in Lebanon, Amrita Pande (2013) observes that their legal dependence on employers under the kafala system is a tool of oppression used against them. Examining migrant workers in Bahrain, Andrew Gardner (2011) enumerates the forms of “structural violence” imposed on them including the threat of deportation and the restricted mobility of workers under the kafala system. In agreement, Pardis Mahdavi (2011), who writes on domestic workers in the UAE, sees the kafala as “systematised structural violence” that renders migrant workers susceptible to abuse due to their restricted labour market mobility. Finally, others use the framework of “contract slavery” to capture the subjugation of migrant domestic workers in the region (Bales, 1999; Jureidini & Moukarbel, 2004).
Shifting from the dominant substantialist approach in the literature on migrant domestic workers in the Arabian Peninsula, this article instead focuses on the system of governance that shapes the meanings of the kafala system in its broader legal context. It specifically identifies the mechanisms that discourage domestic workers from exceeding the boundaries of the kafala system as it asks why the vast majority of them tolerate the substandard labour conditions that have been repeatedly identified in the literature. We attend to this question by examining what happens to migrant domestic workers when they exceed the terms of their membership under the kafala system and quit their employment prior to the end of their contract. Asking a similar question is Nicole Constable (2017) who examines the plight of domestic workers who contest their ineligibility to raise children in the territory of Hong Kong. In this article, we extend the scope of Constable’s inquiry by focusing on domestic workers who contest their relationship of servitude with their employer‐sponsor.
The Governance of the Kafala System
The word kafala derives from the Arabic Ka Fa La, which means “guardian, vouch for, or take responsibility for” (Kakande, 2015, p. 9). The kafala is technically a sponsorship system that assigns full legal responsibility of a foreign worker to their sponsor, who in the case of domestic work would be the employer. This means that employers have control over the legal residency of the migrant domestic worker and can accordingly fire and deport them at will. In other words, the kafala system gives employers unbridled authority over domestic workers. According to Yeoh and Huang (1998), who write on the similar sponsorship system for domestic workers in Singapore, the bound status of domestic workers signals the abdication of state responsibility for the labour conditions of domestic workers. The definition of the domestic as a private responsibility rather than as an arena subject to legal intervention leaves domestic workers with few rights by law.
Yet what mechanisms keep domestic workers in place? What forces discourage them from fleeing servitude and rejecting their restricted labour market mobility? Two threats, namely, cancellation and illegalisation, both of which are rooted in the legal immigration regime, act as disciplinary mechanisms that pressure migrant domestic workers to remain within the boundaries of the kafala system. The immigration regime bolsters the kafala system, and it is this larger politics of labour control that pressures workers to work within the confines of the employer‐sponsor system.
The threat of cancellation
In the UAE, employers can either “cancel” or “release” domestic workers upon the termination of their employment. While a “cancellation” would force the exit of domestic workers from the country and ban their re‐entry for a minimum of 6 months, a “release” would allow them to seek and secure a new sponsor so as to maintain their employment in the UAE. Employers we interviewed are fully aware of their ability to “cancel” and deport a domestic worker at will but at the same claim to not be one who would personally act on their ability to do so. At the same time, they acknowledge however that others might likely be tempted to do so. A Pakistani employer Fawsi, shares:
You know this idea of using draconian law that you are trying to use against somebody without much prove to that they have done something. By banning them and deporting them, I think those ended a long time ago. And I will get really pissed off if somebody treated me that way. And I take the view that just because these people are poor I should not treat them the way I do not want to be treated. But unfortunately, we have not got to that level of sophistication in our own thinking and we treat other people differently to the way we expect to be treated.
While employers we interviewed claim that they would not hold domestic workers against their will and refuse their “release,” the threat of “cancellation” does loom over domestic workers and deters them from quitting their job prior to the end of their contract regardless of labour conditions. In other words, the threat of cancellation poses as a mechanism that disciplines domestic workers into tolerating subpar labour conditions.
Domestic workers who are likely to be cancelled are those who terminate their employment prior to the end of their contract. Those who do so are unlikely to be released by their employer‐sponsor due to the financial loss the employer would incur if a domestic worker fails to complete their 2‐year contract. In contrast, domestic workers who complete their contract claim that employers are likely to release them. Shares Maryann, “What I want to do is finish my contract and see if I have a little bit of joy with them. If I do, I might renew my contract. They told me that they will let me go if I do not want to renew with them. They said they cannot do anything about it. They cannot force me. They will let me go and look for another employer.”
Employers are unlikely to grant a “release” prior to the end of the contract completion due to the financial loss they would incur. Poorer than their counterparts in other destinations, migrant domestic workers in the Arabian Peninsula are those unlikely to have sufficient funds to cover the cost of migration elsewhere. For this reason, employers are saddled with the bulk of the cost of their labour migration. While domestic workers usually only pay for the cost of their passport, medical examination, and police clearance, employers cover the cost of agency and government fees as well as the cost of travel of domestic workers to the UAE. An early termination would then result in the loss of this investment and a severe financial penalty in the perspective of employers.
One employer from India, who was interviewed for a local newspaper article on the lack of rights for employers of domestic workers, shares how he had to forfeit the 15,000 dirhams (US$4083) that he paid an agency for the recruitment of an Indian domestic worker from his native state of Andra Pradesh. He complains: “Within two months of the job, she wanted to go back. We tried to reason with her but she was adamant. If that was not bad enough, she was very demanding. Left with no choice, I sent her back last month.” Another employer, a woman from Iraq with two children, shares her similar predicament of losing a significant amount of money from a domestic worker who refused to complete her two‐year contract: “I hired her from a manpower supply agency in Sharjah after coughing up around Dh15,000 (US$4083). The agency charged me Dh6,800 (US$1851). I paid Dh5,215 (US$1,420) for the maid’s residence visa, Dh755 (US$206) for entry permit, Dh605 (US|$165) for change in visa status and Dh2,000 (US$545) as servant deposit. But when I contacted the agency, it washed off its hands. I filed a complaint with the authorities but ended up spending more money: Dh230 (US$63) as ‘deportation of violator’s fee’ and Dh130 (US$35) as ‘exit passenger fee’. This is so unfair. I cannot afford the huge costs.” For the sizeable fees they pay the employment agency and government to secure the employment of a domestic worker in their home, employers expect 2 years of continuous service. It is for this reason that they are unlikely to extend permission to domestic workers who ask to terminate their employment prior to the end of their contract or request a “release.” Employers have been known to force the deportation of domestic workers who seek a transfer of employment. Fear of deportation pressures domestic workers into tolerating subpar labour conditions.
Explaining why she has never asked to change sponsors, Haydee, a Filipino who has worked for three households in her more than two decades in the UAE, shares: “I never tried because I was afraid I [would] be given [a] cancellation instead. Most employers do that. They don’t give helpers their release but a cancellation.” Haydee, a 51‐year old domestic worker, first came to the UAE in 1993. Struggling to raise three children with a husband who only had sporadic work as a farmer in a rural area of South Cotabato, Haydee welcomed the consistent income she earned from migration. Initially earning 550 dirhams (US$150) per month, Haydee did not see much of an increase in her earnings even after working for nearly 10 years with one Egyptian family. By the time the family returned to Egypt, she only took home a monthly income of 750 dirhams (US$204). Work conditions for her first employer had not been ideal. Haydee did not only earn less than most other Filipino domestic workers, who could expect a starting monthly salary of 800 (US$218) to 1000 dirhams (US$272), she was also denied a day off. Yet Haydee did not seek a new sponsor due to her fear of “cancellation,” which would put at risk her ability to support her family. As she puts it:
My first employer was Egyptian, a very strict one who never gave me a day off and my salary, always late, but lenient on foods. I also eat whatever foods they have. I tried my best to be good until I finish my ten years. I endured staying there that long because it is hard to look for another employer. If I go home, what will I do in the Philippines? I have no income. I have children to support especially their school expenses and my husband had no permanent job so I … just endured through everything.
Haydee remained working for this employer until they ended her contract at the time they relocated from the UAE back to Egypt.
For the last 5 years, Haydee has since been employed by her third employer who she again continues to work for because of her fear of “cancellation.” If she had her way, Haydee would change jobs as her current employers not only reprimand her incessantly but are also quite demanding. For instance, they do not hesitate to send Haydee to the supermarket to return broccoli or other produce she has purchased if they find it to be too expensive. They also pay her less than her previous employer, totalling only 1300 dirhams ($354) per month as opposed to the 1500 dirhams per month (US$408) she earned previously. Expressing how the fear of cancellation holds her back from requesting a job transfer, Haydee shares:
I really want to, I want a higher salary. But I do not want to move out with them until they release me. I do not want that they cancel my papers. They’re very selfish. They would never release you; instead, they will just cancel your employment. I will just wait for them to release me so I can also look for another employer.
Like other domestic workers, Haydee is pressured to tolerate subpar labour conditions such as the absence of a day off, long hours, and low monthly wages because she fears her employers would “cancel” rather than “release” her. Her story illustrates how the threat of cancellation looms over domestic workers and functions as a mechanism that disciplines them into servitude.
The threat of illegalisation
Scholars of migrant domestic work in the Arabian Peninsula generally agree that those who choose to work in the shadow economy as “freelancers” fare better than those who remain legally bound to the sole employment of their sponsor (Mahdavi, 2011; Pande, 2013). Writing on migrant domestic workers in the UAE, anthropologist Pardis Mahdavi (2011) observes that exiting domestic work to join the sex work sector can offer more rewarding employment: “What my fieldwork revealed, however, was a group of women looking for a way out of the oppression they experienced in domestic work and in to the relative autonomy of sex work” (p. 127). In addition to a wider range of labour market options, domestic workers who enter the shadow economy, as we see in the case of Lebanon, are also said to gain “more privacy, control over their time, mobility, and the ability to stay with their family” (Pande, 2013, p. 431). This however comes at the threat of their potential “incarceration and deportation” (Pande, 2013; pp. 431-432).
Living as an undocumented migrant does not only pose the threats of incarceration and deportation. It also constrains one’s mobility in various realms of society, including in the labour market, in one’s interactions with state agencies, and in terms of which spaces are accessible within cities. Criminologist Susan Coutin (2000) offers the concept of “legal non‐existence” to understand the situation of unauthorised migrants who are “physically present and socially active … and yet lack legal status” (p. 27). In the UAE, unauthorised migrants are foremost defined by their status as criminals, and any association with them can result in prosecution. A zero‐tolerance policy looms over their legal status, restricting their access to jobs, various services, and particular spaces. Anyone who assists domestic workers in the act of absconding, including hiring them, could be charged a penalty upwards of 100,000 dirhams (US$27,000) and face incarceration of up to 6 months followed by their deportation. Individuals who might accommodate or support unauthorised migrants—from doctors in hospitals to front desk clerks in condominiums—can also face penalties. Those who hire unauthorised migrants, despite the legal risks, do so in order to avoid paying the annual fee that the UAE government typically charges foreigners who employ domestic workers.
To be unauthorised is not a status that our interviewees wish on anyone. When asked if they prefer to be authorised or unauthorised, all without hesitation said they would prefer the former. While this might not be surprising considering the penalties and risks associated with “being illegal,” what was noteworthy was the extent of hardship people were willing to accept in order to remain “legal.” All interviewees insisted that they would prefer to be authorised, even under extremely poor working conditions rather than seek work as undocumented migrants. Some addressed the likelihood they would have more stable employment while authorised. Others pointed to the way their lives beyond employment are improved with documentation, such as pointing out authorisation gives them access to medical care. Mariam, for instance, noted, “I like having papers better because if I get sick, I can go to the hospital. Right now if I get sick, I cannot be taken to a hospital.” The majority also talked about their ability to see their children in the Philippines, including Cherry, a single mother who has worked in the UAE for nearly 6 years. She shares, “Me, if I had money, I would like to go home. I really want to go home. I miss my children already. Right now, if I had some money, I will go home. We will not be here [alive] forever.” In the most basic sense, they prefer to be authorised as it will enable them to live without fear, which is a psychological state denied unauthorised migrant workers, including Nada who shares: “With papers, you are not scared of everything. [If you leave your position without papers, however, then you’re really scared of your previous employer. You’re also scared of the police.”
Conclusion
This article examines the restricted labour market mobility of migrant domestic workers with attention to the legal context of the kafala system to understand how migrants are enrolled into accepting the constraints of this system in the UAE. It offers a fresh approach to examining the kafala system as it shifts from the “substantialist perspective” of enumerating various subjugations it engenders, which is the approach that dominates current discussions of migrant domestic workers in the Arabian Peninsula. This discussion instead seeks to identify and examine the migration governance field in which the kafala system is embedded to show that it is not solely or predominantly the kafala itself that leaves migrant workers vulnerable to poor working conditions. Rather there are punitive mechanisms that undergird the maintenance of the kafala, including the risk of cancellation by employers and its consequent result of forced deportation as well as the risks associated with entering a state of illegality and the attendant risks of seeking work in the informal economy. These very real risks operate as key disciplining mechanisms, and they help explain why low wage workers are likely to abide by the kafala system despite the restrictions it entails.
The broader significance of this argument is to underscore the similarities, rather than the exceptionalism, that the UAE’s temporary worker program shares with many other countries. Temporary foreign workers are invited to work on short‐term contracts often with low wages and few protections not only in the UAE but also throughout East Asia, North America, and Europe. Migrant workers find themselves compelled to accept these conditions given their relatively limited livelihood opportunities in their home countries, much as migrants do in many other parts of the world. The kafala system is not the sole feature of the migration system that produces the conditions of employment for migrant domestic workers, but one which intersects with a legal system that denies basic labour rights to contract workers.