Legal Clinic

I’m sure you receive questions such as mine all the time but this time I need a clarification. My problem is that I’m having trouble tracking down a recent, reliable, understandable source for information.

My wife and I welcomed our daughter to the world about a year ago. We’ve decided that it’s better for my wife to stay at home and tend to her upbringing. With that, I approached my sponsor asking for assistance in changing her visa Article 18 (work permit) to a visa Article 22 (dependent) with me as her sponsor. They’ve told me I cannot start the process until her final day with the company and the current sponsor has signed the release letter.

My confusion there is that if her visa Article 18 expires after she has finished working, will there not be a penalty for her overstaying her visa Article 18? To add to my confusion, I’m having some difficulties in locating clear cut steps on how the process should happen (i.e., Take this form and these documents to this location with this much money. Then go to this governorate and locate this building and get this signature and stamp, etc.) Any insight you could provide would be greatly appreciated

Name withheld
Answer: We agree that all a lot of people, with a little knowledge, do is confuse others. While we have on various occasions talked on the issue we have never detailed the documents required nor the procedure involved.

It’s not difficult but you will need a few hours off on a number of days to complete the procedure. This is because the procedure involves two ministries as the work permit (Article 18) comes under the Ministry of Social Affairs and Labor and the dependent visa (Article 22) under the Immigration Department (Ministry of Interior).

Before we detail the documents required and the procedure, we would like to stress that your wife does not need to transfer her status only on the last day of her work permit. It can be done anytime provided her current sponsor has no objection on releasing her.

Just in case the sponsor wants her to serve out her tenure according to the work permit, then just ask the sponsor to get her temporary residence (Article 14) while you transfer her residence. This will ensure she does not become illegal and also result in you not having to pay any fine.

Documents required

1. Marriage certificate (attested by your embassy—which may or may not require you to have it attested by the Foreign Ministry in your country —and Kuwait’s Ministry of Social Affairs )

2. Original passport of your wife

3. Work permit of your wife

4. Your work permit (Please ensure it states a salary of at least KD 250)

5. The current sponsor’s certificate of signatures known as ItimadTawkiya in Arabic

6. Your wife’s original Civil ID

7. Copy of your Civil ID

8. Rental agreement (you must be already having it –attach a photocopy)

9. Four passport size photographs ( with blue background ) of your wife

10. Keep your original passport along because you might be required to produce it at some of the counters (although it is just required only at the last stage)

Procedure
Please now remember that as the transfer procedure involves two ministries keep a lot of copies of all the above document because someone (when you least expect it) might ask you for one.

First, pay a visit to the Ministry of Social Affairs and Labor. Outside the Ministry you will find a lot of typists who will provide you two transfer forms. Have these filled by these typists. Now you need to sign both forms and get the same done from your wife’s current sponsor(he also needs to affix his original stamp ).

After this you need to go to the Immigration Department in your area where they will check your all documents and if they are satisfied that you meet all the requirements to sponsor your wife, they will give you a “No Objection Certificate” (Lamana) before guiding you to another office in the same building The Immigration Department will keep one of the forms and give you a letter for the Ministry of Social Affairs and Labor.

Armed with all these papers you have to return to the Ministry of Social Affairs and Labor where the Ministry ( after ensuring that your wife has received all her dues from her current employer ) cancels her work permit.

Now you have to make another trip to your Immigration Department but before you do that you must go to one of the medical insurance firms where you need to get medical insurance for your wife.

The cost is KD 40 per year, which means if you plan to get two years residence for your wife you will have to pay KD 80.

When you go to the Immigration Department, you will first be directed to the PACI (Public Authority for Civil Information) counter where you have to produce your wife’s original Civil ID, which will be punched by the authorities.

At the next counter you will have to pay the residence fees — only KD 100 if you are getting residence for one year but if you want residence for more than one year you have to pay KD 10 for every additional year.

For example if you are residence for two years, you have to pay a total of KD 110.

On production of this receipt at the next counter your wife’s Article 22 residence will be stamped on her passport for the number of years you want.

Please don’t forget to take your original passport along because a stamp, stating that you are sponsoring your wife, will be affixed towards the back end of your passport.

Once the Article 22 residence is stamped, you will need to apply for your wife’s new Civil ID. That ends the whole procedure.

I have a query about my son who is on a dependent visa. His passport validity is until the end of June 2016. He is currently having a visa validity until August, 2016. I am planning to renew his passport in April or June 2016 before its expiry and then transfer his current visa to the new passport.

Is this OK as per the new rule. Or do I need to renew his passport before the new rule on “passport — visa link validity” is implemented in January 2016. Please clarify

Name withheld
Answer: First of all you need to understand the “new” law. We would like to stress that the law on the issue is not new at all and was enacted some five decades ago, it was really never implemented.

It was only earlier this year that the Ministry of Interior (through the Immigration Department ) decided to strictly implement the law. And from January 1, 2016 anyone in violation of this law will be penalized with the cancellation of his residence.

The law clearly says that the “residency of expatriates will be linked to the validity of their passports” which means no expatriate’s residency –when renewed –will exceed their passports validity and if the passports expire so does the residence.

In such cases, the residency of these passport holders will only be renewed once they renew their passports.

This means that even when expatriates only get renewal stamps affixed –without getting new passports — on their old passports they still have to inform the Immigration Department. Failure to do so will result in the cancellation of the residence.

In case people get their passports renewed abroad and return to Kuwait they have show both the passports at the border post, Kuwait Airport or otherwise. They then have one month to transfer their residence to the new passports.

Now those who get new passports while Kuwait, have two months to transfer the residence to the new passports.

In your case, you don’t have to worry about anything. You don’t need to get a new passport for your daughter right now.

All you need to ensure is that you get a new passport for your daughter before the current one expires and transfer her residence to the new document.

So, don’t worry about anything for the moment but get a new passport for your daughter by June and communicate the same immediately to the Interior Ministry.

I joined my current company in April 2010 on a project visa. I hold a university degree and have now completed more than 5 years with this firm.

My question is can I get a transfer? Does the new law apply equally to those who have completed more than 5 years or only to expatriates who came to country on project visas after the date when new law was implemented? Kindly clarify. And finally the main question again: Can I get a transfer or Not?

Name withheld
Answer:We have answered similar questions a number of times but people remain in doubt about the ground realities because there have been a number of statements on the issue plus the fact that there are “socalled experts” who give the wrong advice on some websites.

There has been a lot of confusion and useless talk (from people who know nothing of the immigration laws) on the issue because transfers of government project visas are very restricted these days but this doesn’t mean that you can transfer to another sponsor. But before you jump to conclusions and think that we have given you the green signal on the issue, read the following: As recently as in March — after issuing a similar verdict on Jan 11 this year — Manpower Public Authority Director Jamal Al- Dousary issued an administrative decision allowing expatriates working on government projects to transfer visa from one sponsor to another. But this is where the clarification comes in.

Workers in similar situations were in the past only allowed to transfer their visas to different companies but under the sponsorship of the same employer after the completion of their contracts. But now the new decision clarifies that laborers contracted locally from the private sector or transferring from dependant visas can transfer to other sponsors according to the previous conditions, which are:

1. conclusion of the project’s tenure

2. working for at least one year for the first sponsor 3. getting the sponsor’s approval for transferring. So, this makes it very clear that if you were contract from abroad for this government project then you can’t transfer to another sponsor (your length of service no longer makes any difference) but if you transferred to this project locally from another sponsor / company then your transfer is allowed.

From your letter it seems that you were hired from abroad and not locally which makes your transfer to another company almost impossible unless there is a change in the rules.

I would like to share my case for which I need your valuable opinion. I have just been terminated and given an official discontinuation of services letter with a notice period of 3 months. Will I be entitled to a termination fee? … besides the indemnity, because my employer terminated me without probable cause? I went to the HR department but they told me that the termination fee would be the payment for the 3 months notice period that I have to work for …

Name withheld

Answer: First of all, please remember that an employer doesn’t need an excuse to terminate your services. If the employer doesn’t need your services all he has to do is tell you to leave after giving you the three-month notice. In this regard the law is totally on his side.

In fact, the employer could land himself in trouble if he cited a reason and the employee disagreed with him over the issue. In such a case the employee could take the employer to court and if it was proved that the employer could not prove the reason “he put on paper” for the employee’s dismissal he could end up having to compensate the employee.

So, the easiest way out for the employer is to cite no reason for the termination. So, in your case you will not get anything other than your full indemnity regardless of the period you have worked. The only way you could have gotten any money from the employer would be if you had a “fixed time contract”. In such a case you could take the employer to court and he would have to pay an amount equal to the salary for the uncompleted part of the contract.

I have a very simple request but I need the answer quickly and would be very grateful if you could oblige me with the same. Could you please let me know how to get a duplicate birth certificate from Kuwait as I would like to complete a number of procedures in my country and these would be incomplete without the birth certificate.I have misplaced my earlier certificate.Please let me know as to how and where to get it from and what are the requirements.

Name withheld
Answer: The procedure is very simple and you should face no difficulty at all in getting the birth certificate. If you were born in Kuwait and you have lost or misplaced your original birth certificate you can request for a duplicate from the Births and Deaths Registration Center in Maidan Hawalli. All you need is a copy of your Civil ID card. You will also need a copy of the birth certificate if you have any. In case you don’t have a copy of the birth certificate, the birth date and location and the birth certificate issuing center must be known. You will be given the duplicate certificate for a nominal charge but you will have to get it translated into English and attested by Kuwait’s Ministry of Foreign Affairs in Shuwaikh before you can use it in your country.

I shall be very much obliged if you would kindly give me the necessary information to clear my doubts: My daughter has been working in a private hospital in Kuwait as a physiotherapist from Nov. 01, 2013 on the following conditions mentioned in the employment contract signed on Aug 13, 2013:

1. The employee shall be under probation for a period of 4 months commencing from the date of starting work.

2. The term of the contract is for two years commencing from the date of employee starts work. The contract shall be automatically renewed for a similar period unless the employee notifies the employer in writing of her intention not to renew the contract before at least 3 months from the date of its expiry or the employers notify the employee in writing of his intention not to renew the contract 2 weeks before the date of its expiry.

3. The employee shall be entitled to a remuneration from the employer of a monthly salary of KD 250 which is payable at the end of every month. Free sharing accommodation will be provided.

In the background of the above terms & conditions, I wish to clear my following queries.

1. Whether my daughter can resign from the present employment on Feb 1, 2016 with a 3 months notice as she has completed her two-year contract.

2. Whether she can try to get an employment in MOH/KOC/other private hospital during the notice period?

3. If she is selected in MOH/ KOC/any private hospital, can the current present employer transfer her residence and also provide her a release without any objection?

4. Kindly also detail any other useful information, if any, for the awareness of the employee.

Name withheld
Answer: You have not clarified a lot of things which would have made it easier to give you a very clear answer … for example you have not stated whether you were hired from abroad or transferred to this company locally.

You have also not clarified whether your contract was a “fixedtime” contract or an open-ended contract.

In spite of these omission we will try to give you an answer although we will have to tackle the various possible situations. First of all, if you were hired from abroad, you will have to wait for completion of three years service before you can apply for a release.

You can’t even transfer to another employer unless you complete these three years even if the employer gives you a release. The only exception in this case is if you are a university degree holder and the employer gives you a release.

In such a case you can get a release even after one year of service. On the other hand, if you joined this company locally – and don’t have a fixed-period contract — you can ask for a release as soon as you complete one year’s service.

The employer can’t stop you from transferring to another firm But it seems, from what we gather from your question, you have a fixed-period contract which has been automatically renewed for another period of two years under the same conditions because you did not express a desire to leave the company three months before the completion of the contract.

In such a case, you will have to complete two years with the company and inform your seniors-in writing – three months before expiry of the current contract that you no longer wish to stay with the firm … and don’t forget this time to clear this issue.

Your company can, however, let you go if it so wishes without any obligations on your side. If, however, the company decides to let you go after completion of three years service — if you were hired from abroad – or one year’s service if you were hired locally then there is no harm in you applying to a new company during the notice period. There is no law against it.

I joined my previous company on Aug 1, 2011. The salary mentioned in the offer letter was KD 750 as a complete amount, with an annual leave of 30 days and a probation period of 100 days.

The company stamped my residence on Jan 1, 2012 and to my surprise they mentioned an amount of KD 600 only in the ethanamal (work permit).

They used to give me KD 150 sometimes as cash and sometimes as cheque. In 2013 they gave me an increment of KD 100. On Jan 18, 2015 I sent an email to the company saying that I would like to resign and requested if I could be relieved from my duties with a one month notice.

On Jan 19, 2015 I received an e-mail from company which stated that my resignation had been accepted. On Jan 20, 2015, the company send another e-mail asking me to send a formal letter of resignation and with a relieving date of 31st Jan 2015. Now my previous company has done a calculation and is instructing me to pay back an amount equal to 83 days for not serving my notice period which they did not inform in advance.

Please let me know how the company should handle me in this situation as they had agreed to relieve me without raising any objection to the transfer of my residence and now they are asking me to pay back my notice period amount for 83 days. Please let me know what is the correct calculation. My final salary at the time of resignation was KD 850.

Name withheld
Answer: You have not made things very clear but we will try to answer your question as best as we can. From your letter it seems that you may or may not have been paid a salary for the additional 83 days of the notice period that you did not serve. If you were paid, you are obligated to return the salary that you received for this period because you requested not to complete the notice period after submitting your resignation.

If the company had terminated your services and then asked to leave immediately things would be different as in such a case the company would be obligated to pay you for the whole notice period. On the other hand, if you are trying to say that the company is just asking you for payment for the unserved period of the “3-month notice period” then the company is wrong on the issue.

The company allowed you to leave earlier and did not even ask you to serve the onemonth notice period you had requested. According to the Labor Law, the company can (if you resign) either ask you to serve the 3-month notice period; ask you to pay for the unserved part of the notice period; or let you go (through mutual agreement) whenever you want without asking you for any payment.

So, the company can’t ask you to pay for the 83 days because it accepted you request without mentioning any payment. If it had wanted the payment it should have asked for it when it accepted your resignation. It should have said clearly that you had to pay for any duration of the unserved notice period. If the company insists on the payment, you should file a complaint with the Ministry of Social Affairs and Labor, through the Labor Office in your area.

I am a regular reader of the Arab Times Legal Clinic and want to thank the paper for the valuable clarifications. I have the following two questions:

1. We are working for a security company. As per our contract, we have to perform 48 hours duty in a week (208 hours duty monthly for the basic salary and the remaining extra hours on over time). The company is, however, stretching these hours to 216 when there are at least three working days in the last week of the month — like in March 2015. If anyone rejoins the company late from leave, the company forfeits a basic salary amount equal to the pay for those days in spite of the workers hourly working contract. You are requested to clarify this issue, whether such an action is given cover or otherwise by the Kuwait Labor Law.

2. We joined this company on July 18, 2004 on a basic salary of KD 50 plus a KD10 allowance. In July 2010 this was raised to a KD60 salary and a KD5 allowance. One of my friends has submitted his resignation so can you calculate his indemnity.

Name withheld
Answer: First of we would like to point out there are 26 working days in month but these are then stretched to 27 in months which have 31 days (except those which have 5 Fridays). So, the normal working hours in a month should be 192 for the 26 days or 200 for the 27 days, nothing more. This is the law. If a contract has anything which contradicts the Kuwait Labor Law, it is not valid.

On the issue of late arrivals, the company can fine you a certain amount if it has such a policy on the issue and this policy is implemented across the board.

On the issue of your friend’s indemnity, he should get 11 years indemnity calculated on the basis of the latest salary (ie KD 60 plus KD 5 = KD 65) regardless of when this salary was increased.

All allowances received regularly must be used in all financial calculations, for example in the calculation of the annual leave payment and also the indemnity. So, your friend’s indemnity will be calculated as follows: 15 days remuneration for each of the first five years = 75 days But these 75 days must be divided by 26 (working days in a month) = 2.88 months salary One month’s remuneration for each of the remaining 6 years = 6 months pay Total indemnity = 8.88 months remuneration = 8.88 x KD 65 = KD 577.200 As your friend has served over 10 years he will get the full above amount and nothing can be deducted

This week we received a number of questions on the issuance of visit visas after a new law in this regard was passed. The following are the questions but we will give one answer for all of them as these are related:

1: I last week got a visit visa for my mother which mentions stay for 90 days before the new rules for the visit visas were announced a few days ago. Do the new rules about stay in Kuwait only allowed for 30 days apply to the visit visas issued before July 7, 2015, the date on which the new rules were announced.

2: I got a family visit visa for my wife last month. It’s already been over 30 days since the issuance of the visa. The visa says it must be used within a month. But the new rules say that visit visas must be used within a month. In view of the circumstances can I bring my wife with the visa that I already have?.

Names withheld

Answer: The new rules will only be applied to those visas which are issued after the issuance of the new law. As such, these new visas will clearly mention the duration for which these are valid and also the date by which these visas have to be used. But as a precaution, you are requested to check on the stamp (by the immigration authorities at the airport) on the passport of the visitor to be sure of the duration of stay so that you don’t violate the law.

I am working in the HR Department of a company. Please let me have the clarification for Article 77 of Kuwait Labor Law so that we can follow it as a procedure in our company. We are asking this for the following reason: One of our employees is on annual leave and during this annual leave his uncle has died. Our employee has sent a message to the company requesting it to add 3 days leave to his leave balance When he is already on leave, is he entitled to 3 days additional mourning leave as per the above article?

Name withheld
Answer: The Kuwait Law does not specifically address this issue but there is a guideline for such situations.

According to the Ministry of Social Affairs and Labor’s Legal Department, if such an event takes place during the leave when the employee has already started his leave (even if he has already used up even one day of leave) or this leave has not ended( even if one day is left), then the employee can’t claim additional leave.

On the other hand, if such an event falls at the start or the end of the leave, even if the days overlap, then the employee must either be given three additional days leave or three days must be added to his annual leave balance. Please also remember that the Ministry of Social Affairs Legal Department can always be approached if you have any queries not addressed by the Kuwait Labor Law.