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Holding employees’ passports illegal

By Amira Agarib / 13 May 2006

DUBAI — The Dubai Court of Appeal has ruled that holding of employees’ passports by employers in the UAE is illegal. The ruling is based on the fact that the passport is a personal property of an individual and that have no right to keep the passports of employees in their custody.

The Dubai court gave the judgment in favour of Indian national Xavier who worked for the Arabian Manpower Recruiting Company. Last week, the court had upheld the verdict of the Dubai Court of First Instance and ordered that the Arabian Manpower Recruiting Company release the passport of the employee.

The 30-year-old Xavier, who is an aeronautical engineer, arrived in the UAE and joined the company in March 2004 as a recruitment consultant. The company did not pay him his salary on time, so he submitted his resignation to the company several times. Unable to support himself with his low salary, which was not paid regularly, Xavier filed a complaint with the Ministry of Labour and Social Affairs, and agreed to cancel his visa and labour card without taking any dues.

The company told him that they would give him his passport once he boarded a plane to leave the UAE. The engineer purchased a non-refundable ticket for Dh650 from the Air India Express, went to the airport and waited until 3am, but the company officials did not show up with his passport.

Xavier approached advocate Shamsuddin Karunagappally from Al Cabban Advocate and Consultancy, who filed a lawsuit on October 2005 at the Dubai Civil Court against the sponsor at the Court of First Instance, which gave a judgment in favour of the employer.

The sponsor filed an appeal on the allegations of misappropriation and misuse of company money to the tune of Dh300,000. The defence lawyer managed to convince the court that this financial matter was not the subject of holding the employee’s passport. If that was the case, company officials should have approached police stations to lodge a complaint which they failed to do. As a result, there is every reason to suspect the sponsor’s allegation, the lawyer argued.

Advocate Shamsuddin noted that the employees should give their passports to the employer only for completion of visa formalities, following which the passport must be handed back to the employee once the formalities are carried out. “Refusing to return the passport is illegal. The employer has no right to hold it. The UAE courts have always ruled that a worker has the right to recover his or her passport from the employer anytime. And that the employer has no right to retain an employee’s passport,” he said.

According to international law, a passport is a travel document. It is a government’s assurance to other governments that the holder is a citizen of the country and may be extended the usual courtesies and assistance accorded to international travellers. However, a circular issued on December 25, 2002, by Lieutenant-General Shaikh Saif bin Zayed Al Nahyan, now the Minister of Interior, who was then a major-general and serving as under-secretary at the ministry, says: “A passport is a personal document that proves the identity of the holder, and the laws stipulate that the bearer must keep his or her passport and present it to the authorities upon request.”

It was a directive to all departments that anyone keeping the passport of any resident in the country without a court order does that in violation of the law. “The only party allowed to hold the passport is the judicial authority, or in cases specified by law,” he says.

According to a directive issued by the labour ministry: “An employer can keep the passports of his workers for administrative reasons or formalities required by authorities.” It adds: “However, an employer may not refuse to release a worker’s passport if he or she demands it. An employer must not use a passport to hinder a worker’s movement.”

Although the practice of retaining the passport of an employee is illegal, all ministries, including the Interior Ministry, Labour and Social Affairs, Finance and Industry, hold the passports of expatriate staff, it is learnt.

Shamsuddin said that the UAE should review and reassess the sponsorship system. “It mars the image of the country.”

Justifying the reason for holding employees’ passports in the UAE, Abu Mazin, Director of Orient Company in Dubai, said: “We are required to provide either labour cards or passports of our employees whenever the labour ministry inspectors come by to check. The passports of employees are kept in a safe place, because if the employees are allowed to keep their passports, there is always a risk of them being lost or stolen."

Khaled Ibrahim Khadem, an official at the immigration office in the court, said: “If an employer refuses to return a worker’s passport, the employee can complain to the legal authorities who will help get the passport back or refer the case to the prosecution, which will move the case to the court, which usually orders the employer to return the worker’s passport.”

For any worker, the passport is important, particularly when disputes arise with employers. It was found that in many cases, when workers complain against their employers, the employers use workers’ passports to put pressure on them. They only need to contact the immigration office which will order the company to return the passport, Khadem pointed out.
 
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