x Abu Dhabi, UAETuesday 23 January 2018

Bid to stamp out illegal retention of passports

A loophole in the law means that withholding passports, an illegal yet common practice in the UAE, is being used to "threaten and control" residents.

DUBAI // Hussain S did everything he was supposed to do.

When his employer illegally kept his passport after he left the company, the Pakistani won an order from the Dubai Court of First Instance. But that order, which required the withheld passport be returned to him, was ignored by the company.

The employer required Mr Hussain, an accountant, to pay nearly Dh5,000 before he could get his passport back, as compensation for an accounting error they allege he made. He says the error was made after he left company.

"Why should I have to pay when it is not my fault?" said Mr Hussain, 26, who has since started working for another company in Dubai.

"I had another job lined up, and they wanted to apply for another visa for me, but they were not able to until I had a passport. I couldn't leave the country either, because I did not have my passport.

"I was stuck."

The police would not enforce Mr Hussain's court order, so he paid the fine "just to be free", he said.

"Is there no one who can take action against these companies?," he asked.

Retaining passports is technically illegal in the UAE, though the practice is widespread, particularly for companies that hire large numbers of expatriate workers.

In Abu Dhabi, although the highest courts have ruled that retaining passports is illegal, no law or legislation exists that expressly forbids the practice.

A 2002 decree from the Ministry of Interior states "[I]t will be considered as an illegal action to detain the passport in UAE except by the governmental parties ... In case of retaining passports there will be a suitable punishment by the law of UAE".

However, the decree did not specify which government agency should enforce the rule, though employees can file a complaint with the Ministry of Labour.

Companies typically retain passports as a security measure for employees whose accommodations may not have a safe place for important documents.

But residents have also said their passports were retained as collateral for services at hospitals or by officials during investigations.

Alex McGeoch, a senior legal consultant and head of employment at the law company Hadef & Partners in Dubai, said a diverse and transient culture had led to the prevalence of passport retention as a way to ensure someone fulfils contractual obligations.

"Here, you have people coming from all corners of the globe, and it gives rise to the preeminence of the phenomenon of the passport being used as a document to hold power."

Withholding passports is not technically a violation of International Labour Organisation's (ILO) Convention on the Abolition of Forced Labour. But the ILO committee that oversees labour standards has frowned on the practice of holding workers' passports, noting that "it does restrain their freedom of movement", an ILO representative said.

The ILO representative said employers could keep passports in "exceptional circumstances, for example, if the wish is expressed by workers themselves and in their own interest to avoid documents being lost or stolen".

The theft of travel documents and passports is one excuse some employers have given in the past for holding on to the documents. But employees and lawyers said workers are not always given a choice and do not have easy access to those documents when they are needed.

"The passport issue is getting better in the UAE, but if it does happen, the employee should have the right to get their passports back and it should not take long," said Ahmed Hussain Lootah, the vice chairman of the legal firm Hussain Lootah & Associates.

In the case of Mr Hussain, the Ministry of Labour could not get involved because he was no longer an employee of the company, Mr Lootah said.

"There were no other options for him," he said.

Lack of enforcement for court orders remains an issue.

Mr Lootah said the authorities are working to stamp out the practice in the country but more can be done.

"The UAE can issue more strict laws and regulations, which incriminate the act of withholding a passport illegally to limit this behaviour," he said.

Mr McGeoch said he expected the root causes of the problem to be eliminated.

"I think that, as time goes by, people's thinking will develop, and they will become more aware of human rights," he said. "As human resources departments become aware of the illegality of this practice, no one will be allowed to use the passport as a way to threaten and control."

Earlier this year, employees at the Millennium Hotel in the capital were allowed to keep their own passports, a policy turnaround at the hotel, which in the past required employees to turn in their personal documents.