Legal Clinic

I wish to change my job and I already have an offer letter. I had taken a loan 3 years ago from one of the Islamic banks in Kuwait when I was in my current company and the bank has been deducting the same from my salary in monthly installments. The loan will only be cleared after 2 years. As per the loan contract with the bank, my gratuity will be transferred to the loan account if I resign from my current employer.

This is acceptable to me. However, there will be a loan balance, even after my gratuity is transferred to the bank. My question is that should I clear the loan first before joining the new company or can I continue paying the monthly installments with the deduction from my salary from the new employer? In second case, what is the procedure to be followed?

Name withheld
Answer: While we will give you two solutions to this problem, the safest way out of this situation will be to approach your bank and lay down all your cards before them. They will then show you the direction to take and easily solve your problem. Having said that, the way out of this situation is not as complex as it looks to you.

First you need to inform your bank about your impending transfer to another company. They will most likely ask you to deposit the indemnity you are getting from your current firm with the bank and then ask you to get a similar guarantee from your new firm. Secondly, if your new firm refuses to provide you such a guarantee, the bank could ask you to get another guarantor, either a Kuwaiti or a friend of yours who has an account with the same bank.

But as we said at the start, visit your bank and discuss the situation with them and you will get some sincere advice, although we are sure it will be “one of the two” we have mentioned above.

I have read the Arab Times Legal Clinic article on transfers from a “ shepherd visa”. First of all I would like to thank you for providing such vital information to us through your paper.

I would like to ask one further question regarding the issue of shepherd visa. I have a camel shepherd visa and the company where I am working is vegetables and sheep farms.

I would like to know whether I can transfer my camel shepherd visa to vegetable farm visa or sheep farm (which my company has). I would like to add that I have completed my one and half years in Kuwait.

Name withheld

Answer: We have already mentioned a number of times that people working on farms can transfer, after completing the obligatory period for such transfer, to even Article 18 (work permits) but only if this transfer is to the company of the same sponsor. But if you want to transfer from one sort of farm to another, this shouldn’t be difficult at all if the farm belongs to your current sponsor.

The only time one faces difficulty in such cases is if the farm you want to transfer belongs to another sponsor. In such a case you have to wait three years to make such a request. Please also remember that the Ministry of Interior, through the Immigration Department, is very strict on transfer of expatriates on “shepherd visas” to jobs other than that of shepherds.

A senior Public Authority for Manpower official recently voiced this restriction as a measure to cut down the trade in visas and to ensure that expatriates stick to line of work for which they have been issued visas to work in Kuwait

I have problems with my driving license and as such I need a solution to overcome these problems.
My driving license was issued in 2015 (In January to be precise). My profession was changed during the transfer of my iqama (residence)on in October 2015 … driver to supervisor Now my profession is that of a supervisor and it’s been 5 days now that my license has expired. I just wanted to know whether I will be able to renew it ?.

Name withheld

Answer: First of all the licenses of drivers, mandoubs (company representatives),students and housewives(who got these licenses specifically for these designations after April 14, 2013) stand cancelled when they change their designations.Those who got their licenses before this date are not affected.

Unfortunately, you are among that group which has been affected by this decision. The worse thing is that now you will have to reapply for anew license but this can only be done after two years from the cancellation date of the license if you meet the following conditions:

1. Hold a valid residence for at least two years from the date of application.

2. Hold a university degree

3. Must be receiving a minimum salary of KD 650 In addition, the applicant must pass age and health fitness tests plus face the driving tests conducted by the Kuwait Traffic Department. It  doesn’t matter if you were already a holder of a Kuwait driving license.Please also remember that from Jan1, 2016 the validity of the driving license is linked to the validity of the applicant’s residence.

While on the subject of driving licenses, we would like to mention— for the information of our readers— that the following are exempted from the conditions mentioned against each group.Non-Kuwaiti wives, widows and divorcees of Kuwaiti men who have Kuwaiti children, husbands of Kuwaiti women, illegal residents(bedoun) holding valid security ID cards and students registered in a university or a PAAET institute in Kuwait are exempted from all of the above conditions and can apply for the licenses straight away.

On the other hand the following are exempted from the residency and salary conditions

1. Housewives who have children and whose husbands already hold driving licenses;

2. Members of diplomatic corps;

3. Professional sport clubs’ players, drivers;

4. Company representatives (mandoubs);

5.Passport and Ministry of Social Affairs and Labor representatives who already hold valid driving licenses from their respective countries;

6.Judges;

7. Members of the public prosecution;

8. Chancellors, experts,university and PAAET teaching staff-members;

9. Journalists and members of the media;

10. Doctors;

11.Pharmacists;

12. Engineers;

13.Teachers, social workers, researchers,translators, librarians, imams working for the government;

14. Sports trainers employed by sports federations and government institutions;

15.Private drivers who have been working for a minimum five years for the same sponsor (provided they change their profession to ‘driver’);
16.Specialized technicians in the oil sector;

17. Nurses, physiotherapists and other medical technicians;

18. Pilots,captains and their assistants; 19.Washers of dead bodies.

Meanwhile, general managers,their assistants, managers and accountants are exempted from the residency visa condition.

May I get the advice/ answer to the following question. My cousin’s daughter is holding a valid residence (Article 22) permit until January 2017 which was stamped 3 years ago on her father’s sponsorship. Now she has got married and is expecting her first baby in May 2016 … and her husband doesn’t have a Kuwait residence permit.

1. Is it allowed for her to come to Kuwait and deliver in a private hospital because her parents are in the country.

2. If the baby is born in Kuwait, is it a must for the father of the baby to be available in Kuwait during the delivery time.

3. If the baby is born in Kuwait in above situation, will my country’s embassy issue a passport or travel documents for baby so it can be taken to the home country of the mother.

4. Will the Immigration Department allow the baby and mother (who is on the sponsorship of her father) to go out the country without any legal difficulties. My cousin wanted to cancel her residence permit when she got married but did not.

5. She has a marriage certificate.

Name withheld

Answer: While there are no restrictions on woman delivering babies in Kuwait even if their husbands are not residents of Kuwait, your cousin’s daughter could face a different kind if she delivers the baby in Kuwait because of the new laws which are being enforced from the start of this year.

Before we go, please remember that the father of your cousin’s daughter — by law — was required to transfer or cancel her residence as soon she got married because only unmarried daughters can be sponsored as dependents by their fathers.

So, the father could find himself facing legal problems if the country’s authorities discover that he violated Kuwait’s laws.

Having said that, a lot of such cases have managed to escape the attention of the authorities — although it is a big and unnecessary risk, especially since the country’s laws are being violated — and delivered their babies without much problems although we would advise everyone to avoid breaking the law.

But you will have to take the baby out of the country within 60 days of its birth or face serious legal consequences which could result in you having to visit various government and also the courts.

You will first have to get the baby’s birth certificate before getting the travel documents from your embassy (without any problems).

You have then to get permission to take the baby out of Kuwait from the Immigration Department.

First of all, I would like to thank you for your free legal advice to many expatriates here in Kuwait. My inquiry is as follows: my new company can’t give me a new residence because my visa is a factory visa and cannot be transferred to a construction visa unless it involves cancelling it and exiting the country before re-entering the country on a new visa … my family is here and my son is also studying here. The company officials talked to one of our subcontractors asked for a favour and confirmed that they can sponsor me on a visa from their factory with a position yet unspecified.

I am, however, sure the salary which I am getting now — KD 650 — will not be reflected on the salary paper (iznaamal) — work permit — because all their visas and salary is for a maximum of KD 200 maximum. My question is in this case can I renew my family visa with this salary on the work permit ? Will there be any conflict with my visa in the future? I am an engineer and my position is that of a QA/QC Engineer in this new company.

Name withheld

Answer: Yes, it is very likely that you could face problems in the renewal of your family’s residence if your new work permit reflects a very low salary, which is below the salary cap required to get a family visa.

Until very recently, once a person got a family residence after meeting all the requirements the Immigration Department would “ignore” these requirements – if the sponsor failed to meet them – on renewal of the residence of his family. But now things have changed and the Immigration Department has become very strict. So, it is quite possible that your renewal request could be rejected although it is not certain. So, you just have to file an application and try your luck.

Back in 01-2014 you sent me information about expatriates working until the age of 80 in Kuwait. I have attached the information you sent to me. I am being denied work for jobs from a USA Company, VECTRUS located in Kuwait. They are claiming that Kuwait law does not allow anyone over 60 to work in their country. Since then, I have been trying to get confirmation on this age issue from the Ministry of Labor in Kuwait…. with no response. Can you help?

Name withheld
Answer: Your question the last time was totally of a different nature in which you wanted to know how long expatriates could work in Kuwait and we gave you examples of people even around 80 years old working in the country, but only in the private sector with people over 60 years or in some cases over 65 years working in the public sector but only on special contracts.

Generally, in Kuwait’s public sector the retirement age is 60 years while in some areas this has been relaxed to 65, beyond which (in special cases) people are given extensions of one year at a time.

Now, talking about the private sector, the Kuwait Labor Law nor any other ministerial decisions have not mentioned any retirement age but there is a difference in the laws for people already working in Kuwait and age limit for hiring people from abroad. In the coming paragraphs we will attempt to make this issue as clear as possible to leave no doubt on the issue in the minds of over readers.

While the age of 60 years or 65 years has been set by various ministries there is no retirement age set for workers in the private sector.

Generally, there is no mandatory retirement age in the country because it only applies to those who contribute to Kuwait’s Social Security Fund, which means only Kuwaitis but it is still applied to all in the government sector.

The government is now studying to decrease this limit to 50 years for expatriates in view of the growing local manpower market.

Now coming to the expatriates, it is essential to understand the following. Regarding these employees, especially those who are over 65 years, they may continue to work in Kuwait for the SAME employer, who can renew their work permits automatically without any issue. But there comes a problem when there is a bid to transfer the residence of people over 65 years to another sponsor.

This transfer can’t take place until special permission is obtained for this purpose from the Manpower Labor Authority / Ministry of Social Affairs and Labor. So, you see there is no limit on the working age for expatriates in Kuwait but hiring of people — of the same age group — from abroad is totally a different matter.

Here, however, expatriates from outside Kuwait who are 60 years and above — and in some areas of work above 65 years — are not given a work permit unless a special exemption is obtained the relevant authorities mentioned above. So, if you fall under the higher age group mentioned above, your company needs to get a special exemption for you. A lot of companies, however, don’t pursue this route as it involves a lot of paperwork.

So, we hope that you have the answer to your problem besides learning the difference between age limit for working in Kuwait and the age limit for getting a work permit (while abroad) to work in Kuwait.

First of all thanks for the advice the Arab Times is providing the readers via legal clinic as it’s really helpful for us.

I would like to ask one question regarding my daughter’s residency. I am working in private company and I have valid residency (Article 18) up to 30 November 2016 while my daughter’s residency is expiring on March 1, 2016 (she is on a dependent visa and I am her sponsor).

Normally I used to pay medical insurance for one year and used to renew my daughter’s residency every year for a year but as per new law now I can’t do that because this time my daughter’s residence validity will overlap my residence validity.

So what are my options now? And how much will I have to pay for insurance and is the Immigration Department stamping the residence for less than a year?

Name withheld
Answer: Your daughter’s residence will only be stamped until the date for the expiry of your residence, i.e. Nov 30, 2016 and not beyond that point because now the Ministry of Interior (through the Immigration Department) has linked the validity of the dependents residence to the residence of their sponsor. And yes, the Immigration Department has started stamping the residence of a dependent for less than a year.

So, in your case, the residence of your daughter will initially be renewed until Nov 30, 2016 and once you have renewed your residence your daughter’s residence will be re-stamped until the expiry date of you’re your new residence.

In this regard, you have to remember two vital things:

1. Make sure that your passport is not expiring before the expiry of your residence otherwise your residence will again expire — and along with that the residence of your daughter — on the expiry of the passport. In such a case renew your passport before you get the new residence.

2. Please make sure that you get an Article 14 residence (temporary residence) for your daughter if there is a gap between the expiry of your residence and stamping of the new one otherwise your daughter’s stay for that duration would be termed illegal for which you will have to pay KD 2 per day.

On the payment of health insurance, neither the Interior Ministry nor the Health Department has addressed this issue but an earlier decision says that every time you get new residence you have to get new insurance.

You will, however, forfeit only the insurance for the year for which you have used up even a part of the duration.

For example, if you got health insurance for two years and had to renew the residence after 7 months, you will be considered to have used up the insurance for one whole year and have one year of insurance in balance.

So, once you go to get the residence renewal the year of health insurance balance can be used to get residence for another year. And if you have to get residence for two years, then you will be required to pay health insurance only for the additional year.

I came to Kuwait in January 2014 on a project visa 18 (though the actual job is of a “private sector in nature” and not really a government project). Only a few months after my arrival, the contract for government project expired and my sponsor transferred me into another subsidiary under another project, Article 18. Unfortunately, due to some organizational changes, the company terminated my employment contract and freely allowed me to seek new employment.

My questions are as follows;

■ Is it possible now for me to transfer to a new sponsor under a private Article 18 visa, since I have already been through two project visa transfers?

■ also possess a university degree and have stayed with my original sponsor for more than a year.

■ In case I find a new private sponsor and he too has a government project, can he transfer me to that government project?

■ In case the new sponsor is willing to provide a new private visa, will I be required to go back to the country of origin after visa cancellation or will I be allowed to exit to a nearby GCC country and wait for my new visa to be released.

Name withheld

Answer: You can’t transfer to another firm because you are in the country on a government project, regardless of the private nature of the job or the fact that you have already undergone two transfers.

Secondly, you can’t transfer to another sponsor unless he gets the same government project on which you are currently working.

So, under the current situation — because the government has become very strict on the transfer of expatriates who are in the country on government project visas — your current firm has no way out except to arrange for your repatriation to your country of origin.

On the issue of getting a new visa and re-entering the country the new document, it is better for you to go to your country of origin as there is nothing in the rules which say you can’t go to a neighboring country.

We say this because a lot of people have faced problems in getting the visas stamped by Kuwaiti Embassies in neighboring countries due to the fact that various documents — like the Police Clearance Certificate — are required from a person’s country of origin and without these documents the visas will not be endorsed.

I am one of your readers of the Legal Clinic column as it offers a lot of help to us – expatriates. Kindly advise and let me know what are the requirements and procedures for my two daughters who are currently in the Philippines and cannot come back to Kuwait before six (6) months due to their school schedule exams. Please note that they have a valid residence visa up to May 2017.

Name withheld

Answer: For the children to stay over six months out of the country you have to apply for exemption for this purpose from the Immigration Department. According to the rules, normally such permission is granted to children who are studying in a third country but the Immigration Department is now a little lenient in this regard and regularly gives permission for children who are studying in their own country.

You must also remember that this permission/exemption to remain out of Kuwait for over six months must be obtained before completion of the six months. It won’t be granted after this period, even if you exceed this period by one-minute.

All you need is a certificate from your children’s school saying that your children are studying in that school and are to have their exams as a result of which they can’t travel out of the country for a certain period. You must get this certificate endorsed by the Philippines Foreign Ministry in your country, the Philippines Embassy in Kuwait and the Kuwait Foreign Ministry in Shuwaikh (after getting a translation done of the document).

Attach this certificate to an application, along with two photos each of your children, and submit it to the Immigration Department in your area. You should have no difficulty in getting the exemption. Sometimes the Immigration Department gives this extension for the period you seek and sometimes they department will grant you the permission for the whole duration of their visa period.

Firstly, I would like to congratulate you for your endeavor in providing us expatriates an opportunity to discuss and get solutions to our legal problems. My question to you is as follows: I want to know whether, according to the New Unified Contract Law, it is possible to transfer a shepherd visa to another profession if we have completed one year. I have been trying to get an answer to this question but have failed to get any proper one so far.

Name withheld

Answer: No, you cannot if you have been in the country for only one year. Even if, however, you have completed the obligatory period for a transfer you can only do so to another firm of the same sponsor. Having a Unified Contract doesn’t change the requirements of the Immigration Department (Interior Ministry) for the various categories of expatriates in the country. People wrongly think otherwise. This means that you can change to another designation/profession with a local transfer under a work permit from your current sponsor… if he owns a firm. You can’t transfer to another sponsor. You can, however, transfer to another sponsor thereafter after completing one year in the firm of your sponsor. You will also be able to do this locally without having to leave the country. While on the subject the Unified Contract, we would like the clarify what this contract means so that expatriates don’t start thinking that things will be different or easier in any way. The aim of the Unified Contract is to make things easier for recordkeeping and also for all affected parties to understand all the articles in it. The Unified Contract has a total of 16 articles ( after mentioning the details of both the sponsor and the employee followed by a preamble which introduces the contract and mentions that both the parties have agreed on the articles that follow).

Article 1: only says that the preamble is part of the contract

Article 2: is on the nature of work to be performed by the employee plus the job title

Article 3: mentions that the probation period can be for a maximum of 100 days and that both parties have the right to terminate the contract during this period without any notification

Article 4: talks about the wage of the employee and also mentions the fact that the employer can’t reduce this wage for the duration of the contract.

Article 5&6: are on the contract term mentioning the starting date of the contract and also the duration besides mentioning the fact that both the parties will decide whether the contract is for a definite or indefinite term.

Article 7: talks about the duration of the annual leave also mentioning the fact it will not be due until after 9 months of the expiry of the contract. Please remember that this leave can’t be less than the 30 working days mentioned in the Kuwait Labor Law. The employer can, however, give more than 30 days if he so desires

Article 8: mentions that an employee can be made to work for a maximum of 8 hours a day, with a minimum rest period of one hour, except in cases allowed by the law

Article 9: details the fact that the employer will bear the expenses for the return of the employee to his country on the conclusion of the “work relationship” and final departure from the country

Article 10:stresses that it is obligatory for the employer to insure the employee against injuries and work maladies with the health insurance value to be in line with Law (1) of 1999

Article 11:talks about the end of service indemnity “as set in the regulating laws –meaning the Kuwait Labor Law

Article 12: says that the articles mentioned in the Kuwait Labor Law of 2010 and decisions to execute the same shall apply to this contract and all conditions agreed upon in this contract in violation of the above law are null and void unless these conditions benefit the employee

Article 13: talks about any “special conditions” of the contract but one has to remember that employer can’t give the employee less benefits than mentioned in the Labor Law although the employee can be given more than what is in the law.

Article 14: details that the Court of First Instance and its departments will be the competent authorities to tackle any conflict resulting from the execution or interpretation of the contract.

Article 15: mentions in what language the contract has been made, besides Arabic but stresses that the Arabic texts will prevail in case of any conflict between the languages.

Article 16: says the contract has been made in three copies with one each for the employer and the employee with the third going to the Public Authority for Manpower Now, after having talked of the above, it is important to look at the remarks of a Public Authority for Manpower official who made the following statements (which are self-explanatory) which leave no room for doubt that the Unified Contract only aims at “making things clear “ and does not enhance any benefits for expatriates.

Following is the statement : “The Unified Contract” will not override or add to the old contracts signed by the employer and employees. The new contract is just an extension of the old one in terms of the dues of the employee and years of service. “The new contract obliges the employer to include in the new contract any additional conditions and privileges agreed between the employer and employee such as annual travel ticket, house or transport allowance or any other privileges for the employee. “The main objective of the new contract is to boost awareness between the concerned parties on the labor obligations and rights while ensuring that the prevailing laws on the labor market are observed”. This official also stressed that the Unified Contract is based on the Kuwait Labor Law with all disputes to be settled according to this law. We are now sure that all our readers must be clear on the Unified Contract as we have tried to simplify matters but we would still welcome any more questions on the issue.