Legal Clinic

  • What are we paying Health Insurance for?

    Every employer is paying KD 50 per year as insurance for each employee whenever the residence of the employees is renewed.

    What is this for?

    Is it medical insurance?

    If so, what are the benefits for the employees. It is understood that the insurance company will pay compensation to the employee or his family in case of serious accident or death of the employee during working hours.

    Kindly enlighten us.

    Name withheld
    Answer: The KD 50 health insurance is for expatriates only and the only thing that this provides is “subsidized” health services and that in the public sector hospitals only.

    Most of the private hospitals, if not all, do not provide health services on this health insurance. Expatriates have to pay for each service at the private hospitals.

    This annual fee of KD 50 only provides “access” to the public healthcare facilities. Additional services, such as X-rays or specialized tests result in additional expenses, unrelated to the annual fee.

    You get these services at a subsidized rate, because visitors to the country have to pay the full cost. The health insurance is mandatory for all expatriates and their residence will only be renewed until the validity date of the Kuwait insurance policy.

    Please also remember that health insurance is different from the insurance that the company gets done to cover work-related injuries.

    This has got nothing to do with the health insurance.

    You would also do well to read Articles 89 to 97 of the Kuwait Labor Law on “Work injuries and occupational diseases”.

    These articles clearly state the action to be taken by the company in case of work-related injuries. The articles also mention that a person is also covered by insurance if he has an accident when he is on his way to work or going home from work. This also dispels the notion that workrelated injuries are only those which take place at the work site.

     

  • Part-time jobs

    1). What is legal way to work as a part-timer in any company?

    2). An employee of a company wants to work as a part timer in another company … so what documents he/she should keep with him/ her, to show the authorities, that he/ she is doing the part-time job legally.

    Name withheld
    Answer: There has been a lot of news on this issue over the years, up to the point that the Manpower Authority announced in December 2014 that from 2015 expatriates in the private sector would be allowed to take up part-time jobs and all they would need is permission from their sponsors.

    This issue had earlier surfaced in 2012 without any result and the decision of the Minister of Social Affairs and Labor on the issue is still being awaited … one and a half years after the proposal on the issue was announced.

    So far, only expatriates in the government sector are allowed to take up part-time in the private sector and all they need is permission from their department heads at the ministry.

    On the other hand, Kuwaitis in both the public and private sector are allowed to take up part-time employment provided they have permission from their department heads at the ministries or their sponsors if they are working in the private sector.

  • Transfer of residence of Mother and Sister from deceased Father to Son

    I wish to receive urgent advice from the Arab Times Legal Clinic on the following matter.

    My father, who was working in Kuwait on an Article 18 visa, unfortunately passed away a couple of days ago. My mother and sister are under his sponsorship.

    Now after the death of my father, how long will it be possible for both of them to stay legally in Kuwait. Will it be possible to transfer my mother and sister’s residency (Iqama) to my sponsorship. I am also working in Kuwait on an Article 18 residence as an accountant and already have my wife on my sponsorship. I have no children yet.

    The transfer of my mother residency becomes even more critical as we are Muslims, my mother plans to observe the period of “Iddah” (mourning period ) in Kuwait only.

    Name withheld

    Answer: First of all, you have to approach the Director General of Immigration to allow your mother to stay in the country for the “Iddah” or mourning period (4 months and 10 days for Muslims).

    We are confident the Director General will accept your request. Now talking about the dependent issue, that is a very tricky question because the Ministry of Interior, through the Immigration Department, decreed two years ago that such residencies would be only for the wives and children of expatriates and not any other relative, not even parents.

    But having said that, we would still advise you to approach the Director General of Immigration with your request because such visas — although very few in number — are still being issued with the permission of senior Interior Ministry officials.

    It is possible that you might get a sympathetic ear because your father has expired and your mother and sister are dependent on you. Moreover, they are already in Kuwait on a dependent residence. The most difficult, if not impossible, part will be getting the dependent visa for your sister.

  • Company problems

    First of all I would like to express my gratitude to the Legal Clinic staff of the Arab Times newspaper for the genuine answers provided on most labor related issues experienced by the expatriate community here in Kuwait.

    I was working as an Electrical Engineer – Sales & Marketing Department in a local company from March 2008 to January 2016 (7 years + 10 months) after joining them through a local transfer process.

    On Jan 20, 2016, I tendered my resignation effective on same date. The company sent me a clearance paper to return the company property i.e. (car, laptop & mobile phone) to which I complied and I was instructed not to attend office anymore and to find a job elsewhere.

    I, however, received a portion of my last salary up to Jan 20, 2016 in my account on Feb 2, 2016. I want to know if I am entitled to 3 months salary notice period as per the labor law as they have not let me serve the 3 months notice period? I was told that for me to claim my indemnity I must provide the company a plane ticket enabling them to cancel my iqama.

    “Meaning after receipt of my self-paid plane ticket they will cancel my iqama No.18 then change to visit visa No.14, temporary residence with a validity of 30 days”. Please advise if my understanding is correct. I was told that another way for me to claim my indemnity is to provide the company a transfer paper enabling them to cancel my iqama No.18.

    “Meaning I must join another company’s sponsorship, to bring the transfer of sponsor/release paper from them so I can continue my iqama No.18 with the new sponsor. How much time is there for me to transfer to another sponsor?”

    Please advise if my understanding is correct. My latest salary is KD 560.000 for the calculation of my dues.

    My annual leave was converted into cash as per my request.

    Please calculate my indemnity + bonus, if any.

    Trust that the above information is clear and for us to understand the whole situation your comments/ analysis are needed for a further line of action.

    Name withheld

    Answer: The question that arises here is whether you gave a three-month notice for the resignation or not.

    If you did not give a three month notice, then the company has the right not to pay you for the three-month period plus deduct an amount equal to three months salary from your outstanding dues.

    But in case you gave a three-month notice to the company, then Article 44(d) of the Kuwait Labor Law enacted on Feb 20, 2010 will apply.

    This article states as follows: “The employer may exempt the employee from work during the period of notification but shall count such a period within the worker’s period of service. The employer shall pay the worker all the entitlements and remuneration for the period of notification”.

    So, you can see that the Labor Law makes it very clear that whether the company wants you to serve the notification period or not, it has to pay you for the three months plus include these three months in your service period. This means that this period has to be taken into account in the calculation of your indemnity, whether the company likes it or not.

    On the issue of transfer of residence, the company has to give you “enough time” — normally one to two months — plus it can’t cancel your residence if the company hiring you decides to keep you on a 100-day probation.

    A decision in this regard was issued by the Manpower Authority last year. It clearly states that once your transfer letter has been signed you can keep working for the new employer for the probation period on the old employer’s residence until the new work permit is obtained.

    The company also can’t refuse to give you a release because you joined them on a local transfer and you are entitled to a transfer after a year of service with this firm.

    But the important thing to note here is that the employer must pay all your dues before cancellation of your residence. You have to accompany the employer or his representative to the Ministry of Social Affairs and Labor where you have to sign a certificate saying that you have received all your dues. In case you have not received the dues, you can refuse to sign the certificate and also bring the same to the notice of the ministry.

    On the issue of your dues, we can’t talk about your bonus because you have not mentioned whether you are regularly entitled to such an incentive or under what conditions you are offered this bonus.

    On the leave issue you have already mentioned that the balance of your annual leave has already been converted to cash. We can’t make any further comment in this regard as we don’t know the balance of your leave.

    Your indemnity will be calculated as follows:

    Service: 8 years, one month considering that you gave them a three-month notice. (if not just minus three months from the service and calculate in the same way as below)

    Salary: KD 560 So you get 15 days pay for each of the first five years = 75 days salary

    But these 75 days have to be divided by 26 (working days in a month) = 2.88 months salary

    For the remaining period you get one month salary per year of service = 3.08 months salary Total = 5.96 months salary =5.96 x KD 560 =KD 3,337.600

    But as you have resigned with your service over 5 years but less than 10 years you are entitled to only two-thirds of the above amount = KD 3,337.600 x 2/3 = KD 2,225 approximately.

  • Name Change on Passport & Kuwait Documents

    I want some advice regarding my situation as well as that of my son. I have been using my maiden name since I entered Kuwait, thus the same is reflected in my passport and Civil ID although my husband and I were legally married in our country.

    My 2-year-old son’s sponsorship was transferred to me last year when my husband left Kuwait for good. My son is using his father surname since birth (both on the passport and the Civil ID) Now I have been instructed by my husband to change my surname to his surname because we are going to join him on a family visa and with the same family name it will be easy for me and for him to process our documents.

    As of now I am just waiting for my new passport with the family name of my husband and will get it in the 1st week of April 2016.

    My residence will expire on June 1, 2016 while that of my son on June 26, 2016.

    My questions are: 1. Will there be a big impact to my son’s residency?

    2. Will I have to start all over again his Civil ID process since I have changed my family name?

    3. In my case what is the next procedure as soon as I receive my new passport?

    Name withheld

    Answer: The biggest problem you will face is the name change on all the Kuwait documents. Just changing the name on the passports doesn’t mean everything is over and you can just have all the names amended on all the Kuwait documents. Please understand that there is a proper procedure for name change in Kuwait.

    This can be done in two ways:

    1) By approaching the Ministry of Justice with two witnesses, getting the name changed and having the same published in the Kuwait Gazette before approaching the Immigration Department and Public Authority for Civil Information (PACI) to get the changes done on your visa and Civil ID. This whole procedure takes about four months.

    2) By going directly through the Immigration Department (involves a lot of running around) and some other departments. This could take you about two months.

    While the first procedure involves only what we have mentioned, the second takes half the time — though it frustrates you — and we will also detail the same. After you have received the passports with your “new names”, approach the Indian Embassy and get a Form 17, which will be needed by you at the Immigration Department for the transfer of the residence stamp from the old to the new passport.

    First get this form attested by your embassy and then from Kuwait’s Ministry of Foreign Affairs (in Shuwaikh). After this visit the typists outside the Immigration Department in your area and get an application typed to transfer the visa from the old to the new passport. You will need three photos with a blue background. Then get this application signed by your sponsor.

    Do not forget to mention the change in name. Please also get a copy of his attested signatures (AitamadTawkia). Again visit the Immigration Department in your area. Make sure to take copies of all your documents with you. Meet the head of the relevant section at the Immigration Department.

    After obtaining his approval, go to the reception and get a “token” to deposit your papers at one of the counters. Please ensure you don’t submit any original document and only copies until you are specifically asked to do so.

    At the counter, you will be required to submit both the passports along with copies of all your documents. Then your residence will be stamped in the new passport. You will then be directed to the PACI (Civil ID) counter at the Immigration Department where you will be required to surrender your old Civil IDs and directed to approach the PACI headquarters in South Surra to apply for the new Civil IDs.

    Once you have obtained your new Civil ID, go visit the Immigration Department again with copies and original of both the Civil ID and the new passport. You dependent’s visa will now also be transferred to the passport.

    One point is very important: whichever department you go to, please also mention that you have changed your name else you might have to go through a more difficult procedure (including getting fingerprints done again) if the name change is not correctly done.

    You then have to again visit PACI to apply (with copies of the new passports) for Civil IDs of your dependents. By the time everything is over, you will be wishing you hadn’t changed your name but it will be too late as your work will have already been completed.

  • Visa for baby

    I need to apply for a dependent visa for my newly born first baby … my wife already has a dependent residence, valid until 2017.

    Both of them are in India now, and during my wife’s residency I had our marriage certificate attested by the Kuwait embassy in India.

    Note: We don’t have our names in both passports… please let me know what are the documents required to get a dependent visa for my baby. Once I receive a visa what is the process to follow in India.

    Name withheld

    Answer: We really don’t understand what you mean by “we don’t have our names in both passports”. As such we can’t address that part of your question but we will detail what all you need to get a dependent’s residence for your child.

    1. A photocopy of the travel document for the child which shows at least the name of one parent

    2. The marriage certificate (translated into Arabic and attested by your embassy and the Kuwait Foreign Ministry)

    3. An affidavit (in Arabic), attested by your embassy and the Kuwait Foreign Ministry, which shows your relationship with the child for whom you wish to get the visa.

    4. A rental contract

    5. Copies of your and your wife’s Civil IDs

    6. A copy of your work permit Attach all the above documents to an application and submit the same to the Immigration Department in your area.

    You shouldn’t have any problems in getting the visa.

  • Company trying to cheat on Indemnity

    I joined my current company on April 4, 2000. At that time the company had several projects so company got my residence done on one of their projects. After five years — in June 2005 — my company transferred my residence to the sponsorship of the company.

    When I asked company about my indemnity, the company said that they will calculate my indemnity from June 2005, since that was the date my residence was transferred to the company. I have argued with them, that I had been working for them since April 4, 2000, and because of their own convenience they had got my residence for a sister company… so my indemnity must be calculated from 2000.

    Actually I had been working with them since April 4, 2000. The company also said that in the calculation of indemnity they will calculate only working days… Fridays and public holidays will be not counted.

    Kindly advise me how much is my indemnity as my current salary is KD 300 and my last working day is Aug 31, 2016.

    Name withheld
    Answer: First of all, there is no doubt about the fact that your company is trying to cheat you out of a portion of your indemnity because it must be calculated from the day you started working for them and not from the day the company started to sponsor you.

    As the salaries of all workers are sent to the bank, you have enough proof of the length of your service with this company and you can take your case to the Labor Office and even the court if the company refuses to give you your full dues.

    On the same note we would like to mention that all holidays, weekends and official holidays, are to be counted in the service.

    Even your annual leave is part of the service. The only days that can be deducted from your service is the unpaid leave if you have taken any.

    If the company does not back down over the above two issues file a complaint against your firm with the Labor Office in your area …and if the Labor Office, for any reason, does not decide the issue in your favor take the company to court.

    Your indemnity will be calculated as follows:

    Service start date – April 4, 2000

    Last working day – August 31, 2016

    Total service – 16 years, 4 months (approximately)

    So, you will get 15 days for each of the first 5 years = 75 days

    But these 75 days have to be divided by 26 (working days in a month) = 2.88 months salary

    You will also get one months salary for each year of service after the first five years = 11.33 months salary

    Total = 14.21 months

    salary = 14.21 x KD 300 = KD 4,263

    And as you have served over 10 years with the company you are entitled to your full indemnity.

  • Dependent visa for Infectious disease person

    I have the following important question: My wife has a Hepatitis C minor, can she get a dependent visa?

    Name withheld

    Answer: According to Kuwait’s Health and Interior ministries, if any person has Hepatitis C he is not allowed to get Kuwait residence. This is true for almost every infectious disease.

    So, we are sorry you will not be allowed to get dependent residence for your wife.

    Please remember that even if you manage to get a visa for her, she will face a battery of health tests for the residence formalities when she lands in Kuwait and once she is found to have Hepatitis C, she will be deported.

    For some diseases (like HIV and leprosy), the expatriates are immediately deported but for diseases like TB or Hepatitis the expatriates are given six to 12 months before they are deported.

    This is done on humanitarian grounds. During the period in Kuwait they are given proper treatment before they are sent back. But this is only for expatriates already in the country. New arrivals are deported immediately once their disease is diagnosed

  • Contract problem with holiday time sharing company

    I requested by e-mail and also visited personally — within two days — a holiday time sharing company, located in Kuwait to cancel a contract signed by me for KD 2,600. I had paid KD 300 in advance. The company now says that the contract cannot be cancelled and that I will have to pay the full balance amount of KD 2,300 or else the company will have a travel ban imposed on me. I have not used any facility from them so far and I want to cancel the contract.

    Can I do that? Or is what I am asking wrong? Or can the company impose a travel ban on me if I don’t pay the balance?

    Name withheld

    Answer: You have landed yourself in trouble by signing this contract. Once you have signed such a contract you have to abide by it or you could face legal consequences. It doesn’t matter that you have not availed any facility. The only thing that can save you is the contract itself if it contains a clause — like many, but not all contracts these days — which has a “cooling off period” after signing the contract.

    This period — when mentioned — is the number of days or weeks given to both the parties to break the contract — after the signing of the contract without any legal obligations.

    In your case you have not mentioned if there is any such clause in your contract. You have also to check which country this timeshare company operates from and then review the laws on timeshare in that country. As far as Kuwait is concerned, it is our understanding that there are no laws specific on the timeshare facility. But if you have signed a contract, you have to honor it and can’t back out of it even if you don’t use the service.

    Thousands of people worldwide, and hundreds in Kuwait, face this problem every year because they are literally “trapped” into signing contracts — without examining them — by some companies. Ignorance of the complications involved land people in trouble with only some timeshare firms because a lot of the good firms have an “escape” clause for both the buyer and seller of these contracts.

    The problem was so huge in Europe that the European Commission (EU) passed a law in 2011 which requires that all time shares or long-time holiday products — with contracts of over a year — have a 14-day cooling off period in which the buyer has the right to cancel the contract without having to pay anything to the seller.

    Many countries worldwide have adopted such a law. We don’t know if your contract contains such a clause. If it doesn’t you have no option but to pay up. On the issue of a travel ban being imposed on you, the company itself can’t impose such a ban — it has to request the Ministry of Interior or Ministry of Justice for the same. It is then up to these ministries to accept or deny the request depending on the evidence and severity of the case.

  • Health benefits

    I am an American male married to a Kuwaiti female. At a hospital/ clinic we were told by an employee that because my son’s mother is Kuwaiti, we could make appointments during the day like a Kuwaiti, and for health benefits only, his file would be treated as Kuwaiti.

    Then another employee had a different view and said that as my son is an American he must come in the afternoon like other foreigners regardless of the fact that his mother is Kuwaiti. I would like to know, for general knowledge, what’s correct in terms of the law.

    Name withheld

    Answer: According to the Kuwait law, Kuwaiti women married to expatriates/ non-Kuwaitis are regarded as mothers of non-Kuwaiti children.

    The children and expatriate/non-Kuwaiti spouses of these Kuwaiti women are treated like any other expatriates and have no political, economic and social protection from the state.

    They also have no right to remain in Kuwait unless they get residence permits on the same basis as other foreigners. Having said that, we would like to stress that children of Kuwaiti women married to non-Kuwaiti men still get some preferential treatment until they become adults.

    That is why there is a difference of opinion among the health staff. While the law says one thing, tradition dictates something else. So, from the law point of view, your child is not entitled to any special treatment and will be treated as a foreigner.

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