Legal Clinic

Thanks for the highly valuable community service through your columns! Your contribution has been helping hundreds of people. This question is for a friend of mine. He is a qualified doctor, working for a private, established hospital. He has been working in Kuwait for the last 9 months, and was directly recruited from India. Now he wants to move to a different private hospital for a better opportunity. What steps should he take to move to a new job?

Name withheld

Answer: The doctor can’t move to another hospital until he completes at least three years with his current sponsor as he was hired from abroad. It is only after this period that he can make a request for a release. There is a chance, however, that he maybe able to transfer to another sponsor after one year’s service if the current sponsor gives him a release because the doctor is a university graduate.

Email your queries to [email protected] / [email protected]

Firstly I want to thank you for posting all your Legal Clinic answers online. As you can see, most questions are from expatriates who cannot always follow Arabic so your answers are very helpful to us.

I completed 3 years and 3 months with my previous employer on Visa 18 as an engineer. I am now in another firm but I have issues with getting a release from my previous employer.

I have e-mail proof and handing over verification. I have been to MOSAL (Ministry of Social Affairs and Labor) — Kuwait City and PAM (Public Authority for Manpower) — Jabriya but no one seems to understand! Could you please tell me where exactly to go? I need to get a release!

I also checked on the following link: http://www.arabtimesonline.com/ news/resignation-refused/, but could not get the information I wanted.

The above doesn’t tell me where to go specifically because I’ve been there with my current employer’s paper, asked them for Private Sector No. 18 area and no one seems to know.

Name withheld
Answer: You can keep running from pillar to post but you will not be able to get the work done nor will the concerned department do the transaction for you as this can only be done by the authorized company representative (mandoub).

Please also remember that these transfers are sanctioned by the Public Authority for Manpower but your mandoub can do most of the work electronically, except for the stamping of the residence on the employee’s passport which must be done at the Immigration Department.

The problem lies with the fact that not all cases are being handled by PAM, in fact a major portion is still being tackled by the Ministry of Social Affairs and Labor.

So, let the mandoub handle the transaction. He knows the exact persons to approach and also has the papers which authorize him to complete the transactions on behalf of the company.

If you are bent on doing the work yourself, just go to any of the above two departments and only ask for the counter where the transfers are done – nothing else.

Email your queries to [email protected] / [email protected]

First of all thank you for all the good advice and assistance you give to us, it is really appreciated. I am also looking for some clarifications:

The company that I work for has now advised us that if any colleague has more than 30 days (standard vacation leave) accumulated at the end of the year, it will not be carried over to the following year and we will lose it without any sort of compensation at all, it will just be gone.

Could you please advise if they can do this? And also how much leave can an employee legally accumulate. And how long can you accumulate it for. And if you resign for how many days of accumulated leave do they have to pay you. (Personally I have 62 days accumulated, but some people have up to 80 days). If possible could you please also quote which law and the law number, in case I have to go to our Human Resources Department to prove our case to them.

Name withheld
Answer: Before we answer your question, we need to have a look at all the articles of the Kuwait Labor Law on the question of leave.

These articles are reproduced below :

Article 70: The worker shall be entitled to a 30-day paid annual leave. However, the worker shall not be entitled to a leave for the first year of work except after at least 9 months of service for the employer. Official holidays and sick leaves during the year shall not be counted as annual leave. The worker shall be entitled to a leave for fractions of the year in proportion with the period he spent in actual service, even the first year of service.

Article 71: The worker shall be paid for his annual leave before taking such leave.

Article 72: The employer shall have the right to determine the date of the annual leave and divide such leave after the first 14 days thereof, with the consent of the worker. The worker shall have the right to accumulate his leave entitlements provided these do not exceed two years and he shall be entitled to take his leave at once subject to approval of the employer. The annual leave CAN be accumulated for more than two years with the consent of both the parties.

Article 73: Without prejudice to provisions of Articles 70 and 71, the worker shall be entitled to a cash consideration for ALL his accumulated leaves upon the expiry of his contract.

Article 74: Without affecting provisions of Article 72, the worker shall not waive his annual leave with or without compensation.

You and your employers have to read all the above articles to fully understand their implication.

We will now try to ensure the practical implication of the above relevant laws as follows:

The company is wrong when it says you cannot accumulate leave. Yes, you can — even without the company’s blessings — for a maximum of two years BUT you can only avail this accumulated leave with the permission of the employer.

IF the employer permits, you can accumulate leave for over two years and avail it whenever he permits. But in case you can’t avail it, you don’t forfeit it — no company can make you do so and although you are unable to use it, such leave gets accumulated.

But to encash such a leave you have to wait until the end of your service at which point the company has no choice but to pay you for all the leave that you have accumulated. Article 74 very clearly mentions that you can’t waive this right.

So, even if the company makes you sign forfeiture of leave, it is wrong. The law simply does not even give the employee the right to waive the leave so how can the employer order its forfeiture.

If any employer does so, you should file a complaint in a court of law and if your complaint is rejected you can take the company to court if you want. Simply put, the company has to pay you for every day of annual leave that you have in balance

Email your queries to [email protected] / [email protected]

Thanks for all your responses. I have a query related to my father visa’s as he is born in 1947. Can we get a visit visa for a month for him as few days ago the Kuwait government passed an order not give visas to those who were born before 1950? I would like to know about current status for visit visas.

Name withheld
Answer: Unfortunately, you will not be able to get a visit visa for your father because of the new rule … if it is being strictly implemented, which is sometimes not the case. So, although the chances of a big “no” from the Immigration Department are great, you should still submit an application …you just might be lucky.

Email your queries to [email protected] / [email protected]

Please let me know whether I can convert the visit visa of my son (2-3 months old) into residency after he comes to Kuwait? If yes, is there any time limit to apply for residency after his arrival in Kuwait?

Name withheld
Answer: First of all, you won’t face any problems in transferring your son’s visit visa to a dependent visa. Although such transfers are banned, exceptions are made for infants — children two years old and under.

So, in your case, when your child is only 2-3 months old you will not have any problems in converting your son’s visit visa into a dependent’s residence.

Coming to your second question, you will have exactly 60 days from the time your application is accepted by the Immigration Department.

During this time your son will have to undergo the medical examination ( as your child is still a baby there will not be any medical tests for him, only he will be checked for the vaccination / inoculation he has so far received.

So, keep that record handy), plus you will have to pay the medical insurance, get the residence stamped and apply for the child’s Civil ID. If you miss this deadline, you could face legal complications which could take weeks, if not months, to resolve.

Email your queries to [email protected] / [email protected]

I want some information on dependent visas. My kids are holding valid dependent visas up to May 2017. Now they are in my native place. Unfortunately my company terminated me last week and my visa will expire next month. Due to this situation my company will cancel my visa. If I go to my native place and come back on new visa by another company what will happen to the residence of my children. I am planning to bring my kids also at that time. How do I know if my kids visas are valid or not at that time? How can I change my kids sponsorship to my wife without my kids in the country (my wife holds a valid employment visa)?

Name withheld
Answer: Please remember that your children’s residence will also be cancelled if yours is cancelled by the company. You can always check about the validity of the children’s residence by going to the Interior Ministry

website: https://www.e.gov.kw/sites/kgoEnglish/Pages/eServices/MOI/ResidencyExpiry.aspx#

Please remember that the Interior Ministry (through the Immigration Department) may allow you to transfer the children’s residence to the sponsorship of your wife (through the special permission of the Director General of Immigration) for a short while to sort out your problems. But the important thing to remember here is that you can do this transaction while the children are out of Kuwait. They have to be physically present in the country for the transaction to be performed.

I am working in a private company since 2007. Now I am trying to get a release … is it possible or not? Please send me details on how to approach my company?

Name withheld

Answer: Well, you have already put in 9 years service so you should have no problems in getting a release. You are entitled to one three years after being hired from abroad or one year if you did a local transfer on joining this firm.

You should also know that you are entitled to two-thirds of the indemnity — if you resign — because you have over 5 years but less than 10 years service.

To get a release you will have to resign by giving a three-month notice and finding a job with another company.

You then have to get a transfer letter from your new sponsor and get it signed from your current sponsor. Just give this release / transfer letter to the Mandoub (company representative) of the new firm and he will do the rest.

I request you to guide me and give me some suggestions to my problems as you have been giving a lot of nice advice to your readers.

I have a 3-month old daughter, born in India. I got her visa when my visa was valid, but when I brought her to Kuwait only two days were left for my visa to expire.

Now when I approached the authorities for her Civil ID number, they told me to wait and meanwhile my visa expired.

My company has extended my visa i.e. Article 14, but because of this I am unable to get her residency. What to do and how much penalty will I have to bear?

Name withheld
Answer: You can’t get residence for the baby until you get proper residence yourself because only expatriates on proper residence can sponsor their dependents.

In all events, please remember that you are required to get residence for the child within 60 days of her entry into Kuwait but it looks like you won’t be meeting this deadline … so keep reading this article.

Please remember that in all cases like yours, when the delay in getting the residence goes beyond the 60 days set by the Ministry of Interior, the case automatically goes to court.

When you go to the Immigration Department, after your residence issue is settled, to get residence for your child, you will be referred to an investigation officer in your area.

The investigation officer will take your statement, including the fact on why the whole procedure was delayed.

The case will then be referred to court and you will be told to report to a certain prosecutor who will then give you a date to appear in court.

During the hearing, the judge almost never asks you anything and passes his verdict based on your statement to the investigation officer and the remarks of the prosecutor.

So, you must make it clear in your statement to the investigation officer that the delay in getting the residence was no fault of yours.

In most of the cases, the judge just imposes a very nominal fine — around KD 20 or 30 (a lot of times there is no fine at all) and tells you to get the residence of the child immediately.

After paying this fine, you have to go to the Immigration Department to get the residence. There will be no further fine and you will easily get the residence on payment of the regular fees.

I firstly thank you for the clarifications that you have been providing to all the expatriates here in Kuwait and appreciate the efforts put in.

My query: I had got a family dependent residence visa issued for my wife almost 3 months ago.

However, my mother in law became very ill owing to her old age due to which my wife decided not to travel. I wanted to cancel my wife’s visa so I had asked my wife to courier me the original visa from India. Unfortunately she has misplaced the visa.

Now, I do not wish to get into hassles of legal formalities by approaching the immigration department.

Owing to her mother’s ill health, she has delayed her plans to settle in Kuwait with me, but wants to visit me for a short duration.

So once the current dependent residence visa expires (which is in 2 weeks time), can I apply for a family visit visa immediately for my wife since the earlier visa has not been utilized at all.

Name withheld
Answer: You don’t have to worry about the issue. As soon as the visa you have expires, you can apply for another one.

You don’t have to get the current visa cancelled, unlike work permits, because dependent visas expire automatically if these are not used within the time mentioned at the bottom of the visa.

So, just go ahead and apply for the visit visa. The immigration officials will not ask you about the expired dependent’s visa but just in case they do, just tell them the truth – she has changed plans to settle in Kuwait.

Just want to seek advice on my plan of going back to my country for good after my 4 years of working here in Kuwait. Do I need to submit a resignation letter or end of contract letter? I started to work in my company as a machine operator in March, 2013 and my 4 years will be completed in March, 2017. I came from the Philippines. Do I need to ask the company for my indemnity and other benefits?

Name withheld

Answer: Yes, you need to give a 3-month resignation notice to the company even if you are leaving the country for good. And as you will have put in over three years, but less than five years, service you will entitled to only half the indemnity as you will be resigning from your job. You will also be entitled to payment for any balance of annual leave plus any other benefit mentioned in your contract.