Over the years we have handled countless cases involving employee and employer labor disputes. More recently, we have seen an uptick in the amount of claims raised by employees against their employers for illegally withholding their personal documents, attested education certificates, experience references and in the most common, interesting and important cases we see the employers seizing the passports of their employees. This action by employers is considered an abuse of power, whereby, they withhold an employee’s passport as leverage for negotiating which benefit their companies. Like, for example, to request their employees the payment for visa issuance or/and cancellation, and in some cases to avoid the payment of outstanding salary, etc… Based on our experience dealing with employees first hand, this consistently caused the employees significant emotional and financial damage.
The most common occurrence used by employers, is withholding an employee’s passport until he/she repays/compensates the company for the costs of issuance of the work and residency permit or the cancellation of their employment. Visa costs are the employer’s sole responsibility regardless of how the employee was hired, if they resigned or are terminated. Any request from an employer for compensation or installment plans towards visa fees is illegal and punishable by UAE law. Article 131 of Federal Law No. (8) of 1980 – Labor Law states “upon expiry of contract, the employer shall bear the cost of the worker’s repatriation to his point of hire or to any other point that was mutually agreed upon.”
Employees need to understand their rights when they are hired, if they resign or when they are faced with termination. The only reason for an employer to officially be in possession of an employee’s passport is when the employer is carrying out a specific task which requires the original of the employees passport (i.e. visa issuance, renewal or/and cancellation). After the employee obtains their employment visa or their employment visa is cancelled, the employer should immediately return the passport back to the employee. However, this isn’t always the case, and if the employer doesn’t willingly hand over the passport, the employee should immediately take an official position against the refusal and request the return of the passport, in writing.
If the employer insists on withholding the employee’s passport, after the employee has submitted their written request for the return of their passport, the employee should request the company to issue an official letter confirming the fact that they are in possession of the employee’s passport and the reason behind this action. This letter should be dated, should be on the company’s letterhead, stamped and signed by the authorized representative of the company. The letter should mention the employee’s name, passport details and the reason for withholding the employee’s passport and the name of the person who made this decision. If the employer will not comply with the employee’s request for an official signed and stamped letter, then the employee should insist on obtaining a colored copy of their passport dated and signed by an authorized representative of their employer, to have a proof that the original passport is withhold by the company.
In cases which the employer withholds the employee’s passport against the employee’s will, and the employer refuses to issue an official letter or signed copy of the employee’s passport, the employee should follow the next steps in order to recover their passport:
1. Contact a lawyer or legal consultant who is experienced with solving such labor disputes;
2. The lawyer or legal consultant will draft a legal memorandum which will be submit as a Petition in the labor court. The legal memorandum will outline the employee’s claim against their employer for withholding the employees passport illegally and unjustifiably, and request the employer to immediately release the employees passport or/and to issue a verdict authorizing the use of police force to recover the employees passport;
3. The supporting documents, to be submitted with the legal memorandum, include but are not limited to the following: copy of the employment contract, copy of the official letter issued by the employer confirming the reason for holding the passport, copy of the employee’s passport and Emirates ID and any written communication between the employee and the employer (legally translated into Arabic) related with the return of employee’s passport;
4. The Labor Court judge will issue their verdict within 48-hours after submission of the legal memorandum and supporting documents; and
5. The judgment will be communicated to the employer and to the local police station within the jurisdiction of the employer’s company location. If the employer fails to comply with the court verdict, a police agent will accompany the employee to the employer’s office and recover the employee’s passport.
It is illegal for an employer to withhold an employee’s passport against the employee’s will. The employer should only be in possession of the employee’s passport when they are carrying out official business (i.e. visa issuance, renewal and/or cancellation) and the passport should be returned to the employee directly after completion.
When the employer takes possession of the employee’s passport either willfully or against the employee’s will, ensure you either obtain an official letter or a copy of your passport signed by the employer.
It is illegal under the laws of the UAE for an employer to request any reimbursement for the costs involved issuing or cancelling an employment visa.
Mohamed Salah Shoaib
ELNAGGAR LEGAL ADVISORS LIMITED