Tim Elliot: Welcome once again to Lawgical Lite. I’m Tim Elliot, here again at the Jumeirah Lakes Towers District with Ludmila Yamalova, the Managing Partner at the legal firm, Yamalova & Plewka, here in Dubai. In this episode, passports, employment, and the law. As always, here is our legal expert, Ludmila. Good to see you.
Ludmila Yamalova: Good to see you too, Tim.
Tim Elliot: So, can an employer demand to hold an employee’s passport, Ludmila? Let’s start there.
Ludmila Yamalova: Can the employer do that? They can and they do. Are they allowed to by law? No. This is a practice that has existed in the U.A.E. for quite some time and with time, as the public becomes more educated, it is fading, but it still exists. It the past what used to happen was that the employers would hold their employees’ passports as long as they were in their employment. This was done for a number of reasons. It was in particular typical of when the employees were more in a service industry in the service sector let’s say, or domestic workers, for example, for nannies, for gardeners, for drivers. Similarly, in a lot of, for example, spas where you have nail practitioners and such, that was a very typical practice, but in general even in corporate setups where you had business companies they would often hold passports of their lower paid employees.
Now, this was done for a number of reasons. The core reason for this is because of the nuanced and particular relationship that exists between employees and employers in the U.A.E. and it applies to all those who are non-Emiratis. For a non-Emirati to work in the U.A.E., they are allowed to do so only if they have an employment visa to work here. To have an employment visa to work, you need to have employment. To have that employment visa properly done, it has to be sponsored by the company for whom you work. As a result, you have what is called a sponsorship relationship between the employer and the employee. In short, the employer or the company, because of this sponsorship relationship, effectively sponsors the employee and as such is responsible for that employee. Because of it, many companies did not want to take the risk of having, for example, their employees run away, which used to happen. They would either run away or they would go and work for someone else or perhaps they would go and conducts acts that the company did not necessarily approve of, such as taking out loans, and they might have needed passports for that. But it ultimately stems from that employee/employer sponsorship relationship where companies felt because of this sponsorship element they were responsible for the employees, and therefore, they wanted to be able to control what their employees may be able to do. Obviously having a passport gives those employees freedom and many companies did not want for that to exist.
They were even more interesting examples, and that is, for example, where employees worked for even semi-government entities like free zones. We have heard of cases in the past where certain free zones would hold passports of their employees, and in fact, the employees expressly would be denied payment of salaries if they did not hand over their passports. These practices existed over the years and were quite prevalent. As a result, obviously there were a lot of issues that arose and that is because peoples’ circumstances change. For example, someone gets ill and they need to leave the country, or their family member is unwell and they need to leave the country, and they felt that they were often beholden to their employer and they didn’t have the freedom to travel because they did not have their passports. So the practice has existed, but the law has always been the same, and that is, it is not legal for anyone to hold the passport of anyone else unless it is a properly licensed government authority, for example, immigration, the police, or the courts, but not just any government authority. It is not like, for example, RTA can request to hold your passport. It has to be an authority that by the scope its role in society ultimately can demand the holding of the passport. But otherwise the law has always been very clear: No one is allowed to hold the passport of somebody else against their will.
Now, against their will is an interesting caveat because a lot of the times employers would have a clause, either in their offer letter or in the agreement, or would have a separate document where they would require the employee to sign off that they are handing over the passport voluntarily. But the premise of why this law is what it is and has always been the same is that the passport is actually the property of the government that issues it. It is not the property of that particular person per se. Therefore, the other private parties and non-government entities do not have the right, or no one has the right, to hold the property of a foreign government unless specific circumstances exist, such as the example of the police or immigration.
Tim Elliot: That is the point, isn’t it? Passports are the property of the issuing country and should only be in the custody of either the holder or a person authorized by the holder. It is incumbent on a passport hold to be, I suppose, responsible for safekeeping of the passport, so that means there are no reasonable grounds for an employer to hold onto an employee’s passport, simply put.
Ludmila Yamalova: Correct. Though I have to tell you, we have heard a number of . . .
Tim Elliot: There’s always a ‘though’.
Ludmila Yamalova: Yes. We have had a number of alleged reasons as to why employers, for example, request for the employees to hand over the passport, such as safekeeping. That in particular we have heard a lot with domestic workers where employers will say, okay, we are holding the passport for you so that you don’t lose it. Well, that’s not really a genuine argument. If that domestic worker lives with you in your house, then obviously there is a place for them to store their passport that is accessible to them and that is under their control. But as you said, you’re right, there are no legitimate reasons for anyone to request and hold a passport of somebody else.
Tim Elliot: Wouldn’t you even need to check with an embassy or a consulate if you were even permitted to offer your passport for safekeeping, theoretically?
Ludmila Yamalova: I think you should. Knowledge is power and certainly the more information you gather, the more sources you can rely on, the more arguments you have when that particular request comes forward. Don’t be surprised, even to this day when the general public is much more educated, these examples happen. We hear of many employees and clients that complain that they have no freedom because of this employer or that party are holding their passports.
I will tell you, there is another variation to this that we have seen in the past. For example, in commercial disputes, or not even disputes, commercial relationships, the same thing happens. Let’s say I wanted to borrow money from you, 10,000 dirhams. You say, fine, I’ll give you 10,000 dirhams and you give me your passport. Using the passport as a guarantee in these arrangements happen, but they are very easy to rectify. In fact, if something like this happens, what do you do? You call the police, and that’s basically it. It is as simple as that. Many people obviously worry getting the police involved, but the police will act on these requests and they act pretty swiftly. Most of the time it is just a matter of a phone call. The police will call whoever it is that is holding the passport and will just request for them to hand over the passport. If they don’t, then they will ultimately show up at the door and request that they do so physically or in person. But in short, it is just a matter of reporting it to the police, and the police are quite familiar with the law and will act efficiently.
Tim Elliot: Can a company terminate an employee because they refuse to allow their employer to hold their passport?
Ludmila Yamalova: In practice, yes, they can. Because employers in the U.A.E. and employment in general is at will, the employers have the freedom to terminate employment at any point in time for any reason and with no notice, but it just becomes a matter of compensation. In that case, let’s say if employment was terminated because the employee refused to hand over the passport, then the employee could claim what is called arbitrary dismissal and that is that they were terminated without good cause and as such they are entitled to compensation as a result of this. In many cases, depending on the length of their employment or the type of contract, it could be anywhere up to three months of full salary just as compensation for arbitrary dismissal, and that is in addition to the one-month notice that is always attached to every employment contract.
Tim Elliot: If you did win an arbitrary dismissal case, is a company obliged to rehire an employee?
Ludmila Yamalova: No. The U.A.E. does not have laws that require any party to either hire someone against their will or to be employed against their will. The concept in the U.A.E., and it’s very similar to the U.S., is just employment at will. Therefore, as a company, I cannot be forced to hire anybody I don’t want to hire for whatever reason, even if, let’s say it’s Tim that has red hair. It just doesn’t matter how arbitrary it is or discriminatory. Legally I can never be required to rehire you. Similarly, Tim, you can never be forced to work for me against your will. That is what is called employment at will. In other countries, in Europe in particular, there are a lot more restrictions that are attached to an employee and employment relationships, but in the U.A.E. it is more akin to the U.S. system.
Tim Elliot: Okay. You kind of answered this when you said the example of borrowing 10,000 dirhams for me. Good luck with that, by the way. But if an employer does hold onto your passport, what can you do? You simply would call the police and say, look, this has happened?
Ludmila Yamalova: Correct. In that particular case, let’s say, the employer in that case is holding my passport because the employer, the company that is, lent me the 10,000 dirhams. You can see from the employer’s standpoint, well, this is fair. I gave you 10,000 dirhams because I tried to borrow you, Tim, but you didn’t give it to me, so I had to go to my employer. In the employer’s mindset, they are making this good gesture and an accommodation to an employee by lending them money, but obviously they want some sort of guarantee. In their minds, they might be justified, especially because there might be a document that clearly states, I gave you 10,000 dirhams and in exchange you gave me your passport until you pay it off. That relationship, using that example, you have separate relationships. You have the commercial relationship where I still owe the employer 10,000 dirhams and then you have the passport relationship which is completely different. The two are separate. I could still go and call the police and say, my passport is with my employer, and the police will get involved and I will receive the passport. The employer will have to give up the passport even though there is this document that exists that said, yes, I borrowed money against the passport. Because the two become separate legal relationships. The employer still has a case with me or a has a right to the 10,000 dirhams, it is just that they have no right to hold the passport as a guarantee because that is against the law. The contract still exists and is still valid, and the employer’s right is still there, but the form of guarantee that the employer used is an invalid form of a guarantee under the law, and therefore that part of the contract is now invalid and the passport will be returned to me.
Tim Elliot: If, as an employer, and an employee reports you to the court, the police, the Ministry of Labor, whichever path they choose, what kinds of penalties might apply and between whom? How does that work?
Ludmila Yamalova: With regard to the passport, it’s not really a claim that can be taken to the civil court or the labor court. It is a more of a criminal matter. In that case, if you, for example, or the employer holding onto my passport and you refuse to give it to me, it’s criminal. It’s similar to theft. It is a form of theft.
Tim Elliot: So would it be the Ministry of Labor who would then contact the police, for example?
Ludmila Yamalova: No. It would be me, the employee, the humble employee whose passport is now in your custody, in your example, the company. I would be the one that would file the case with the police claiming that you have my passport and that you refuse to give it to me. It becomes a criminal matter, so there isn’t really so much of a monetary compensation to me in the criminal case. However, let’s say, you, the company, have taken my passport and as a result I cannot travel and let’s say something happened and that I had my ticket booked to go home at that time, but because you did not give me the passport I lost that ticket and maybe hotel reservation wherever it was that I was going to. Now once I have won my criminal case against you whereby the criminal courts have adjudicated a decision in terms of whether you were allowed to hold that passport, and now you have been held criminally, or maybe responsible or guilty for having taken my passport. Now I have a criminal verdict against now. Now, with that verdict I can go to civil court and I can now claim compensation for the damages I have suffered as a result of your criminal act. The criminality of your act will have already been proven by virtue of the criminal court’s judgment, and so in that case because all the damages in the U.A.E. system have to be proven or substantiated, so I would have to show on this date I had a ticket and I paid X amount for his ticket and I had a hotel reservation for the next month, wherever it was, and whatever other expenses I can show that I have paid for and therefore losses I have suffered as a result of not being able to travel. In that case, you have the criminal sanctions, but you also may have the opportunity to recover some of your financial losses as long as they can be substantiated.
Tim Elliot: Ludmila Yamalova is the Managing Partner of the Dubai based law firm, Yamalova & Plewka. As always, Ludmila, a huge thank you.
Ludmila Yamalova: Thank you to you, Tim.
Tim Elliot: Passports, employment, and the law. That’s another edition if Lawgical Lite. Now we can’t cover every aspect of the U.A.E.’s legal framework in each episode, but if there is a legal issues you would like answered, you can get in touch via Lylawyers.com or via any of our social channels and we’ll try to answer in a future edition of Lawgical. You can WhatsApp to 00971 52525 1611. For a legal consultation, hit the Contact button at Lylawyers.com.
