The Times Special Report
The deportation in mid-August of around 20 expatriates for committing the ‘environmental crime’ of dumping construction waste material and hazardous liquids in undesignated areas, once again raises the contentious issue of non-judicial administrative deportations in Kuwait.
Administrative deportations have often come under criticism from international and local human rights organizations, and have been cited against Kuwait by the United Nations and other entities concerned with migrants and international migration. Though news of the recent environmental deportation was reported widely in local media, no one seemed to consider the legal and human rights aspect of such deportations, or to ask the pertinent question: Did the ‘environmental crime’ warrant the disruption of the lives and livelihood of these deportees?
A statement last week by the Director of the Environmental Inspection and Control Department, at the Environmental Protection Authority (EPA), Nada Al-Dabbashi said that deportation of the expatriates for breaking the environmental law, will serve as a deterrent for other workers who may commit similar violations. Deterrent or not, the proportionality of the ‘crime’ and its punishment is what rankles observers. Moreover, there was no mention in the EPA statement on whether the companies and individuals involved in generating and ordering the transfer of the construction waste were punished.
Al-Dabbashi did add in her statement that citizens and company owners who are proven to have violated the environmental law will be issued a penalty ranging between KD5,000 and KD 50,000. What was left unsaid in this explanation is that the hefty fines would be waived, if the citizen or company owner agreed to a reconciliation order and paid a relatively small amount as a fine to the EPA. For reference, in the case of those found in violation of environmental rules related to outdoor camping sites, the reconciliation order fine is only KD250, even though the maximum legally stipulated penalty is around KD5,000.
Environmental deportations are not a one-off instance; in recent weeks there has been a spate of similar disproportionate administrative deportations based on changes to residency and work laws. The Ministry of Interior has reportedly listed several new offenses in addition to earlier ones that would lead to immediate deportation of involved expatriates.
Besides dumping waste and construction material in undesignated places, expats would also face deportation for fishing in Kuwait Bay without a permit, driving without a license, or picking up or dropping passengers from highways and main streets by bus and taxi drivers. In addition, deportation awaits those violating public morals; those arrested for working at a place other than of their sponsor; or for not working without renewing work permits.
Last week, it was also reported that the Ministry of Interior had begun to activate Article 16 of the Foreigners’ Law, which stipulates the deportation of any resident who has no apparent source of income. This follows several raids by security personnel on makeshift markets, and arrest of street vendors, and bizarrely, of customers frequenting these venues. It appears that irrespective of whether those arrested have valid residency papers or not, if an expatriate is apprehended in makeshift markets or is found engaging in an illegal workplace, they face the prospect of being summarily deported.
Data from different sources show that around 15,000 expatriates found in violation of residency and other laws have been deported since the start of the year. Of these, more than 10,000 were in violation of the residency law and were marginal workers residing illegally in the country. The large number of marginal workers points to one demographic characteristic that Kuwait shares with its neighbors in the Gulf Cooperation Council (GCC) countries — all of them host a large expatriate population, many of whom live illegally.
In Kuwait, expats and their families account for nearly 70 percent of the population. Latest available statistics also indicate that only around 55 percent of Kuwaiti citizens of working age are employed, compared to over 85 percent of non-Kuwaitis. The demographic imbalance and the high unemployment rates among nationals have been used as justifications for increasing the pace of Kuwaitization of jobs in public and private sectors, as well as for calls from sections of the public and lawmakers to deport expatriates.
Retrenching foreigners and deporting expats is obviously not the answer to unemployment among nationals, and to adjusting the skewed demographic structure. The sense of entitlement — by virtue of nothing more than being born a citizen — precludes many young Kuwaitis from engaging in manual, outdoor work, or seeking employment in the more competitive and merit-based private sector. Instead, many among the national youth cadre entering the labor pool each year prefer to wait it out for an opening in the public sector, while enjoying the generous unemployment benefits provided by the State.
Experts have warned that in a country with a demographic makeup such as Kuwait, where three in four of the population is a foreigner, it is not feasible to remove nearly a million foreigners and replace them with nationals. Nor is it practical to turn the demographic ratio to 70:30 in favor of nationals, as some have suggested. Evidently, it is far easier to stand up and holler, “let’s throw the expats out”, than to sit down and do the numbers. If someone did take the time and effort to do the latter, they would soon realize it was not realistic to implement the former.
It bears underscoring that deportation is a powerful tool that the authorities should wield judiciously and with greater restraint. Rather than seeing deportation as a deterrent, it would be more effective if the concerned entities work to deter the underlying circumstances that give rise to these errant practices. While no one will dispute the right of the State to arrest and deport residency violators and the largely unemployed marginal workers, the State also has an obligation to stop the proliferation of visa traders who provide visas that enable marginal workers to enter Kuwait, but then do not provide them with the due employment.
Reports citing Interior Ministry officials have noted that sponsors of marginal workers who are apprehended and deported will have a block placed on their file with the Public Authority of Manpower (PAM) and the Ministry of Commerce and Industry. The block will be removed only after the concerned sponsors adjust their status with PAM and the commerce ministry, and also pays for the air-ticket that was paid for by the Ministry of Interior to deport the workers. In this arrangement everyone appears to come up on top, except for the worker — the interior ministry gets reimbursed, PAM and the ministry gets the violator’s status rectified, the errant sponsor is once again free to ply their trade, and the worker gets deported.
The expatriate who probably paid a large sum to obtain a visa to Kuwait, not only loses the money he paid but also gets deported in the bargain. To echo the earlier question, is this a fair and equitable application of the law? But then, whoever said the law is about fairness. The Kuwait Society for Human Rights (KSHR) has on numerous occasions deplored such unfair administrative deportations and called on the government to halt them. The KSHR describes these deportations as “oppressive” measures against the expatriate community that violate the basic principles of human rights. The group warned that the measure could tarnish the Gulf state’s image abroad at a time when its human rights record is under scrutiny.
In its latest annual report on human rights practices worldwide, the United States State Department noted that in Kuwait the laws allow authorities to administratively deport a person without judicial review. The report added that this law is often broadly used and subjects noncitizens charged with noncriminal offenses, including some residency and traffic violations, to administrative deportations which they cannot challenge in court. However, noncitizens charged in criminal cases face judicial deportation only after a court hearing, which they can challenge in a higher court.
The Amiri Decree 17/1959, enacted before the country’s independence in 1961, governs the residency rules for expatriates in Kuwait. The law consists of 28 articles along with amendments to these articles incorporated over the years. The law allows government authorities to administratively deport a person without judicial review, but requires the person to be a threat to national security or harmful to the state’s interests.
In 1996, Kuwait also ratified the International Covenant on Civil and Political Rights, which obliges the country among others to respect the civil and political rights of individuals, including the right to due process and a fair trial. Article 13 of the Covenant provides that “an alien lawfully in the territory of a State party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against this expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”
What this implies In simpler terms is that the Covenant obliges states signing or ratifying the document to ensure that migrant workers lawfully residing within their territories shall not be expelled unless they endanger national security or offend against public interest or morality. The Covenant also underlines the right of migrants to have their expulsion order reviewed by the relevant judicial authority, and does not differentiate between administrative and judicial deportation.
In addition, Kuwait is also a signatory to the 2004 Arab Charter on Human Rights, which affirms the principles contained in the UN Charter, the Universal Declaration of Human Rights, and the International Covenants on Human Rights. The significance of signing on to the Arab Charter is that, unlike other human rights documents perceived as being conceived by the ‘West’, this was an instrument formulated and negotiated by states of the region for the region.
Article 26(2) of the Arab Charter notes that an alien lawfully in the territory of a State party may be expelled only pursuant to a decision reached in accordance with law. In addition, the alien must be allowed to submit a petition to the competent authority, unless compelling reasons of national security preclude it. Dumping waste construction material in undesignated spots, or fishing in Kuwait Bay without a permit, or illegal street vending, cannot by any stretch of imagination be construed as being a ‘threat to national security’.
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