VI. Punishing Escape

It shouldn’t be against the law to run away from an abusive employer. Sometimes these girls, they say ‘do you know what happened to me in that house? They hit me, spat on me...how can there be a case against me?

—C.N., civil society activist, Kuwait City, November 10, 2009.

Domestic workers who leave their employment prior to completing their contract without their sponsor’s consent can be fined, arbitrarily detained, or sentenced to jail time under Kuwaiti law. Though “absconding” appears in Kuwait’s immigration regulations, rather than its criminal code, the punishment attached gives it the effect of a criminal offense. Thus, current law treats domestic workers who seek to exercise their right to freely terminate employment as criminals.

As previously detailed, Immigration regulations require employers to report domestic workers’ absence from their homes. The police have broad discretion whether to help or detain a worker, depending on whether her employer had filed a notice of absconding. What happened in each case that Human Rights Watch documented also depended on the individual police officer the worker met, and how he chose to address her situation.

Absconding

The majority of workers who said they had left abusive employment told Human Rights Watch that their sponsors had reported them to the police as absconding cases. Article 20 of Kuwait’s Aliens’ Residence Law obliges employers to report a domestic worker to the Interior Ministry if she has been absent from work without permission for more than one week.[168] Police officers may check a worker’s name or civil ID number, for example, by stopping her on the street to see if there is an absconding registration under her name in the police database. If so, they detain the worker for investigation.[169] Absconding registers as an immigration violation under the worker’s name and civil ID number. Any workers lacking appropriate documentation and registered as absconding with the police authorities may be imprisoned for a period of six months and/or fined between KD200 (US$692) and KD600 ($2077).[170]

The Ministry of Interior fingerprints workers whom police have arrested for absconding and, in the majority of cases, deports them rather than trying them on absconding charges.[171] Deportation department director Col. Ahmad al-Rajaiba told Human Rights Watch that “Everyone who is caught without a valid residency permit is brought to the deportation center right away.”[172] An official from a labor-sending country said, “If they are convicted of absconding, [this] usually takes a maximum of six months’ punishment. But because of jail congestion, [the workers] must be deported.”[173]

Workers interviewed whose sponsors have reported them as absconding faced lengthy and arbitrary periods in detention, anywhere between a few days to several months.[174] The labor attaché of a sending country, who has worked in Kuwait for one-and-a-half years overseeing more than 4000 cases, told Human Rights Watch: “Once absconding cases are filed against workers, they are presumed to be guilty. There is an investigation by the police or CID [the Criminal Investigations Department]. Until they are cleared, they cannot go [home].”[175] During this time, the workers remained in police detention centers or Kuwait’s investigative detention facilities, commonly referred to as “Investigations” (tahqiqaat) or the “Salmiya Camp.”

While the government places domestic workers in detention under the premise of investigating charges filed against them, interviews with workers indicated that authorities failed to obtain their testimony relevant to any charges filed and neglected to ensure that they understood any criminal charges filed against them. Makeda T., a 19-year-old domestic worker from Ethiopia, told Human Rights Watch that she had been in Kuwait for a year and two months, and had worked in five houses during that time. At each house, she said that she had been refused pay, denied adequate rest, or beaten by her employer. She left her last employer’s home to live with a relative without a valid residency permit. Makeda told us that she had spent over three months in various police detention centers, but was not provided with legal assistance or informed of any opportunity to contest her detention. “I spent one month in the ‘Umariyya police station after being arrested,” she said. “They called [my] kafil [sponsor] but I did not get to see him or know whether he came. Then I spent two months in Jahra, from where they took me to Salmiya for fingerprinting. The police never asked me any questions.”[176]

Article 9 of the ICCPR prohibits arbitrary arrest and detention, including arrest and detention based on the application of national laws that are themselves arbitrary or unjust.[177] It further requires that “anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall promptly be informed of any charges against him,” and that “anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within reasonable time or release.”[178] However, three workers that Human Rights Watch interviewed at the government deportation center who were scheduled to depart that very evening remained unaware of their absconding registrations.[179] By deporting domestic workers on criminal charges without informing them of the charges against them and without providing an opportunity for reviewing their detention, Kuwait violates their right to freedom from arbitrary arrest and detention and their right to be promptly informed of criminal charges filed against them.[180]

Kuwait residents who frequently assisted domestic workers in distress described how employers misused absconding reports to exert control, and that regardless of employers’ intent, these registrations penalized workers unfairly, providing no exceptions for reasonably leaving an employer. Amanda D., from the Philippines, said that her female employer of seven months told her she must move with the family to Africa, where her male employer would take up a new post. After Amanda refused, she said, “They filed an absconding case against me. [My employer] doesn’t want to surrender my passport.” Amanda said she had health problems and could no longer work. “What I want is [for her] to give back my passport so I can go back [to the Philippines] soon,” she told us.[181]

Some workers reported that employers terminated their employment with no notice and filed false absconding charges to ensure their deportation as violators of Kuwait’s immigration laws. Thus, absconding regulations, in combination with workers’ poor access to labor complaint mechanisms, allowed employers to send workers home and to terminate their sponsorship, even in cases where they owed a worker wages. In cases where the two-year contract term had not ended, employers effectively prevented workers from obtaining new employment.

Reverend Andy Thompson, who regularly interacts with expatriate workers through his role at St. Paul’s Anglican church in Kuwait, spoke out about the abuse of absconding provisions in a Kuwaiti newspaper column:

The reality is that the charge of absconding has become the standard ploy whenever an employer decides that they have had enough of their workers. The police are unable to make a distinction between a genuine grievance and an employer who simply marches into a station and hands his employees over for arrest.[182]

“When I was a lawyer [for] the Philippines embassy, we constantly had absconding cases,” Abd al-Majid Khuraibet told Human Rights Watch. “Some sponsors used these cases, and the threats thereof, to assault domestic workers. The absconding provision needs urgent reform.”[183]

Criminal Charges against Domestic Workers

Employers also filed allegedly retaliatory criminal charges against domestic workers trying to secure their rights, or threatened them with charges should they try to flee abusive situations. Human Rights Watch investigated two cases in which workers said that their employers threatened them with criminal charges of theft should they try to leave abusive situations, while six workers said that employers or recruitment agents had threatened them with, or filed, spurious charges of theft or assault.

Mary P., a Filipina domestic worker who said her employer forced her to dig through the trash for food, called her a “dog,” and refused to give her any time off, told Human Rights Watch that she and her co-workers had asked their employers to return them to their agency.[184] She said that her employers began physically abusing her after this request, and threatened to charge her with theft if she left their home.[185] Because of the threat of theft charges, Mary said that she left her employers’ home without taking even her personal belongings.[186]

Sanju R., from Sri Lanka, also told Human Rights Watch that her male employer threatened her with theft should she escape after he caught her trying to run away. “[Sir] caught me at the gate. He told me, ‘Sanju, I have a watch that cost 2000 KD [$6,900]. If you run away, I’ll say you took it.’ I was very afraid.”[187] Though Sanju later escaped to her embassy, she told Human Rights Watch, “I took [only] my uniform I was wearing. I did not want to [be accused] of taking anything.” 

In January, the Kuwait Times reported that Elena, a domestic worker from the Philippines, found that her employers had charged her with stealing valuables when they visited her in the al-Razi orthopedic hospital.[188] Elena was recovering from injuries sustained after she fell from a second floor window. She told the Kuwait Times that she had tried to escape after her employer hit her on the head multiple times, and that she only had taken what items her employers had given her in a suitcase they packed. "My madam told me that I took valuable things from their house and that she has filed a case with the police against me. I'm not worried because I don't do such things. There is a [security] camera inside their house anyway, so how could I steal valuables?”[189]

Even workers seeking assistance and protection from government authorities may instead be detained on criminal charges, while the police fail to inform them of the nature of such charges. After working for two-and-a half years, Tilkumari Pun, a 23-year-old domestic worker from Nepal, asked for her wages and to return to Nepal where her father needed a heart operation. After waiting ten months for her employers to make these arrangements, Tilkumari went to the Bayan area police station for assistance. From the police station, she said, “I had to go to the CID [Criminal Investigations Department.] Baba and Mama [had] filed a police case against me.”[190] Criminal Investigations cleared Tilkumari of suspicion after she spent two days in detention, she said. However, she had yet to recover the thirteen months’ of wages her employers owed her at the time of her interview with Human Rights Watch. Fayrouza A., a Sri Lankan worker, also turned to the police after she said her employers chased her out of the house. “They owed me two months’ salary,” she told Human Rights Watch. “Baba and Mama didn’t pick up the phone. Mama said I had stolen from her, that I was a thief. [The police] put a travel ban on me.”[191]

C.N., who provided regular advice and assistance to domestic workers, said that employers sometimes filed these charges as a means of protection. “Employers [are] afraid the domestic workers would sue them so they file a case.”[192] A Kuwaiti lawyer who handles thousands of domestic worker claims each year suggested that in some cases employers filed theft charges to avoid paying for a worker’s ticket home. Employers who do not pay for a worker’s ticket are flagged in the Ministry of Interior’s records and prohibited from sponsoring new workers, renewing their drivers’ licenses, and accessing any other civil services provided through the Ministry.[193] However, when a worker is charged with theft or other crimes, responsibility to pay her deportation expenses passes to the government.

Failed Escapes and Suicide Attempts

Though attempted suicide is not listed as a crime under Kuwait’s Criminal Code, Undersecretary for Legal Affairs in the Ministry of Social Affairs and Labor Mansour al-Mansour told Human Rights Watch that attempting suicide is a crime in Kuwait. He added that individuals who attempt suicide are rarely punished.[194] Lawyers, domestic workers, embassy officials, and civil society participants interviewed by Human Rights Watch reported that individuals deemed to have attempted suicide could face criminal charges.[195]

Kuwaiti media regularly describes cases of migrant workers who fall from tall buildings and sustain severe injuries as “suicide attempts,” and write in these reports that “a case was registered against [the worker]” by police authorities.[196] The media reported between one and three cases of alleged suicide or suicide attempts by migrant workers, the majority of whom are domestic workers, each week in 2009 and early 2010.[197] In November 2009 alone, local newspapers reported thirteen different cases of suicide or attempted suicide.[198]

Human Rights Watch visited Al-Razi Hospital and Farwaniya Hospital—both public hospitals in Kuwait—and interviewed eight domestic workers who were recovering after alleged suicide attempts. Six of the eight told us that they had fallen while trying to escape, while the others said that they had fallen or that employers had pushed them. The Kuwait Times also described the phenomenon of workers facing legal charges after failed escape attempts. A local reporter interviewed two Filipina domestic workers recovering at a hospital from injuries they said they incurred by falling while trying to escape. They added that their employers had filed charges against them.[199]

Alida, another Filipina domestic worker, said that her female employer pushed her from a balcony after she had worked only a month in her home.[200] She told a local volunteer, who recorded her interview, that her employer forced her to work excessively long hours while denying her food for over a month.[201] Alida had to ask her neighbors for food in secret. When she sought assistance from her agency, her employer came to the agency and took her back against her will.[202] After returning home, the employer hit Alida in the face and said, “I’ll let you die first before you go.”[203] Alida continued:

After that, she [dragged me by] my blouse in her two hands and pushed me. She threw me out of the window from the third floor. Baba came downstairs and [grabbed] my left hand. He turned me around on the ground. When he put my hand down, I fainted. The next thing I remembered I was in hospital. It was one week before I woke up because I was in a lot of pain.[204]

As Alida recovered, she said that she learned that her employers had described the incident as attempted suicide and that they had filed charges against her. “Why would I try to kill myself?” she asked Human Rights Watch angrily. “I have only been here a few weeks! I came here to work, not to kill myself.”[205]

Confusion exists around the legal and practical consequences for domestic workers who have fallen from a height or otherwise endangered their life—either by accident, attempting to escape abusive employment, by being pushed, or in a genuine suicide attempt. Fahad al-Ajmi, the head of the Kuwaiti Lawyers’ Association, told Human Rights Watch that attempting suicide was a crime under Kuwaiti law.[206] However, Kuwait’s Criminal Code fails to explicitly criminalize suicide attempts.

Confusion around the legal and practical consequences for domestic workers who have fallen from a height or otherwise endangered their life demonstrates that responsible authorities tend to treat workers as they would other immigration law violators rather than providing them with the assistance and counseling merited by their circumstances. The prevalence of these incidents also reflects the more widespread problem whereby employers forcibly confine workers in their homes, depriving them of recourse to community support or government assistance.

Deportation

Administrative deportation remains the Kuwaiti government’s primary method for dealing with the thousands of domestic workers who leave their employers each year before completing their employment contract.[207] At present, the Kuwaiti government does not offer alternative exit procedures for workers who have completed their two-year contracts but whose employers have refused to return their passports or for those who have escaped abusive employers. Nor does the government provide judicial review of administrative deportations. Even women who completed their two-year contract terms heard from embassy officials or lawyers that deportation provided the easiest and fastest route home when employers refused to return passports or lift absconding reports in their names.

Marsit, an Ethiopian domestic worker, stated that because she did not have her passport with her when she escaped abusive employers, she had been unable to return to her country. Marsit said that her employers repeatedly deprived her of food over a six-month period, paid her only half the wages they owed her, and allowed their son to beat her on several occasions.[208] “I have [waited] for four weeks now for my employer to deliver my passport and my salary, [so that I can] go home,” she said.[209] Nur W., an Indonesian worker at a government deportation detention center, said that her employer denied her permission to return home at the end of her two-year contract and also refused to return her passport when she ran away.[210] “I went to my embassy; they called Mama [my employer] from there. Mama still said no [to returning my passport.] I had to go to deportation,” she said.[211] Indefinite periods of waiting for their passport, or for authorities to complete deportation procedures, meant that Marsit and Nur had to shoulder further costs of foregone income, extended family separation, and confinement at temporary shelters or deportation detention centers, unduly burdening their right to freely exit the country under international law.

Ratih L., another Indonesian worker in deportation detention, said she had a good relationship with her employers and worked for them for over two years.[212] However, they had forgotten to renew her residency visa for four-and-a-half months after it expired, and decided that the easiest solution was for Ratih to leave the country through deportation proceedings.[213] Kuwaiti government officials confirmed that deportation remains a commonly-used channel to repatriate workers whose sponsors refuse their consent to terminate employment. Ahmad al-Rajaiba, head of Kuwait’s Deportation Detention Department, told Human Rights Watch that “if a domestic worker wants to leave a sponsor, she should go through conciliation channels. If the sponsor remains non-responsive, we have some cases [that] go through deportation.”[214] Mohammed Khoreibet, a lawyer for the Indonesian embassy, said, “sometimes, it’s easier for [the workers] to go [home] through deportation.”[215]

While principles of sovereignty allow Kuwait to deport individuals who have “no visible means of living,” international law prohibits the government from arbitrarily depriving individuals of legitimate claims to property, under Article 17 of the Universal Declaration on Human Rights, and from depriving them of the right to a fair hearing in the determination of a civil claim, under Article 14 of the ICCPR, including claims to claims to compensation or redress.[216] Four out of six domestic workers interviewed in deportation, as well as 13 women in the government shelter, made claims for unpaid wages or alleged criminal assault against employers or agents in Kuwait. Embassy officials or lawyers we spoke to conveyed advice based on their experience with the current system, suggesting that some workers’ claims would take a long time to pursue and would be unlikely to succeed given the narrow legal avenues for recourse. One embassy lawyer told Human Rights Watch that he wins only 60 percent of his unpaid wage cases because women—as a consequence of working in private homes where no independent witnesses or documentation can confirm their testimony— lack evidence to prove their claims.[217]

Interviews with domestic workers awaiting repatriation and deportation, as well as with civil society organization members, embassy officials, and recruitment agents, suggest that many women have claims for unpaid wages, physical abuse, or rape, yet leave the country without relief, or decide not to pursue these claims in the face of obstacles to redress (discussed further in the following chapter).

Deportation policies further violate international law protections against arbitrary expulsion, and the right of an alien to “submit reasons against his expulsion.”[218] Kuwait’s deportation policies, described in Section II (covering the legal framework) of this report, provide no opportunity for workers to contest the deportation decisions issued by state police authorities. In particular, workers charged with absconding lack a guaranteed opportunity to contest this charge—or their deportation—by registering their reason for leaving an employer. While workers charged with criminal offenses may be deported pursuant to a judicial order, those charged with immigration offenses can be deported at police orders with no requirement for judicial review.[219] Abd al-Majid Khureibet, former lawyer for the Philippines embassy, told Human Rights Watch, “[Kuwait] need[s] reform in the deportation procedures…. All deportations should be under judicial supervision.”[220]

Regardless of what brings them to deportation, Kuwaiti government representatives and sending-country embassy officials agree that domestic workers waiting to be sent home often spend lengthy and arbitrary periods in deportation detention facilities. According to deportation director al-Rajaiba, individuals should spend only between 48 and 72 hours in deportation before leaving the country. [221] Three major obstacles keep deportees in detention for longer periods, he said.[222] First, many awaiting deportation did not have travel documents. Their sponsors had confiscated their passports and refused to provide them, he said, and embassies did not always cooperate in issuing replacement documents.[223] Second, some deportees still needed an airline ticket, but their employers failed to pay. Deportation authorities could register a fine of KD352 ($1221) to cover airfare under the nonpaying employer’s name, preventing him from accessing government-administered services, including the ability to sponsor a new worker, until he paid.[224] Al-Rajaiba told Human Rights Watch that the department had a list of between 500 and 700 employers with blocks registered in their names at the time of Human Rights Watch’s interview.[225] Third, about half of all detainees in the deportation detention center still faced unfinished civil or criminal lawsuits. “Persons with ongoing court cases,” he said, “spend a lot of time in deportation [detention].”[226]