Legal opinion about the status of the citizens of the states of the Gulf Cooperation Council (GCC), the status of a foreigner who is a spouse of a Bahraini and persons without nationality
Source: Legal Affairs
KINGDOM OF BAHRAIN
DIRECTORATE OF LEGAL AFFAIRS
Note
Legal opinion about the status of the citizens
Of the states of the Gulf Cooperation Council (GCC), the
Status of a foreigner who is a wife of a Bahraini
And persons without nationality
On 26-8-2007, the legal directorate received a letter from the Labour Market Regulatory Authority (LMRA), requesting the legal opinion about the status of certain categories of workers employed in the Kingdom, and whether it is mandatory for them to obtain work permits. The categories were mainly:-
- Citizens of the states of the GCC
- A foreigner who is a wife of A Bahraini
- A person who is without nationality, but granted special treatment with regard to medical care and some housing benefits
The core of the subject is that LMRA is authorized by virtue of Article (4) of Act No. (19) (2006), to take all necessary actions to regulate the labour market including the issuance and renewal of work permits, conditions, categories, durations and all related matters.
On the other hand, the GCC Countries United Convention, which was ratified by Decree No. (26) (1981), stipulated egalitarian treatment, without any discrimination to the GCC citizens. Moreover, Decree No. (3) (1983) with regard to treatment of the GCC Citizens in Financial matters, confirmed the same principle.
Due to the abovementioned considerations, LMRA was of the opinion that the provisions of Act No. (19) (2006) do not apply to the GCC citizens and in particular Article (23). In accordance with Article (23) it is obligatory to obtain a work permit before the conduct of any economic activities in the Kingdom.
It is to be noted that Article (2) of the same Act, explicitly exempted all matters regulated by international treaties currently in force in the Kingdom, from the application of the provisions of Act No. (19) (2006).
At the same time, LMRA is enquiring about the status of a foreigner who is a wife of a Bahraini. Currently such persons can work without obtaining a work permit. LMRA is of the opinion that such a situation is a violation to Article (19) (2006).
Also, LMRA is of the opinion that a person without a nationality cannot be considered a Bahraini national.
LMRA demands the legal opinion of the Directorate of Legal Affairs on the three categories of workers.
Firstly: Citizens of the states of the GCC
Whereas Article (2) (A) of Act (19) (2006) provided that: “Without violation to any international treaty in force in the Kingdom, the provisions of this act shall be enforced with regard to the regulation of the Labour Market, Work Permits, Recruitment (Manpower) agencies& Employment offices licenses and Foreign Employers licenses.”
And whereas, Article (23) (A) of the same act had stated that: “Foreign workers are prohibited to conduct any work in the Kingdom without a valid license issued in accordance with the provisions of this act”
And whereas, Article (3) of the GCC Countries United Convention, ratified by Decree No. (7) (2002) had stated that: “The legal and natural persons of the states of the GCC, shall receive the same treatment in each member state, without any discrimination in all economic aspects, and particularly in the following:-
(1) Mobility &Residence
(2) Work in Private & Public sectors
(3) (...)
(4) (...)
(5) Conduct of all economic, investment and services activities (...) and the member states shall agree to comprehensive executive rules for the creation of a Gulf Common Market.
And whereas Act No. (24) (2004) With Regard to the Treatment of the citizens of the states of the GCC Pertaining to Economic Activities in the Kingdom Of Bahrain, stated that: “Without violation to the provisions of any enactment or regulation currently in force in the Kingdom of Bahrain with regard to the conduct of the citizens of the states of the GCC economic activities, the citizens of the GCC states, whether natural or legal, are permitted to practice all professions and conduct all economic activities without any restrictions, excepted the restrictions stated in the schedule annexed to this Act”
And whereas Article (2) of the same act, provided that: “ The permission for the citizens of the GCC member states to practice all professions and conduct all economic activities, referred to in the preceding article, is subject to the restrictions approved b y the GCC Higher Council, in its 8th. Session. Those restrictions are included in Act No. (9) (1988) with Regard to the Amendments to Act No. (3) (1983) with Regard to the Treatment of the Citizens of the GCC Member States Pertaining to Economic Activities in Bahrain”
It is clear form all the aforementioned statements of the law, that the citizens of the GCC member states enjoy the same treatment granted to Bahrainis, with regard to the conduct of economic activities and practice of professions. The only exception is the limitations specified in the schedule annexed to Act No. (42) (2004), subject to the qualifications stated in Act No. (9) (1988).
The United Economic Convention, referred to above, provide for equal treatment for all the citizens of the GCC member states including the public &private sectors. They are also allowed to the conduct of economic, investment and services activities.
On the basis of what had been clarified, it can be safely stated that the provisions of Article (23) of Act No. (19) (2006) - with regards to the prohibition of foreigners to conduct business in Bahrain, without work permit - do not apply to the citizens of the GCC member states.
Secondly: Foreign wives of Bahrainis
Whereas Article (2) (B) of Act No. (19) (2006), stated that the provisions of this Act, do not apply to the following categories:
(1) Non - civilian foreigners employed by Bahrain Defense Force, National Guard and all security agencies of the Kingdom.
(2) Foreigners who visit the Kingdom temporarily, for less than fifteen days to conduct certain business transactions, e.g. Markets, exhibitions, ceremonies, festivals, celebrations and other activities in accordance to limitations and conditions issued by LMRA.
(3) Members and administrators of Diplomatic, Consular and international missions to Bahrain, within the jurisdiction of each mission.
And whereas the abovementioned clause (A) is applied without prejudice to international treaties in force,
And whereas clause (B) did not exempt foreign women married to Bahrainis,
The fact that a foreign woman obtained a residence visa by sponsorship of her Bahraini husband does not bear any legal effect with regard to work permits. Work permits are regulated by Act No. (19) (2006), while residence visas are regulated by immigration & passports systems.
Therefore, the foreign woman who is married to a Bahraini should obtain a valid work permit, before conducting any business in the Kingdom.
Thirdly: The status of Persons without a nationality
Whereas Article (2) of Bahraini Nationality Act (1963) stated that: “In this Act, unless the context otherwise requires, the following words and phrases, shall have the corresponding meaning:
Foreigner: Any person who is not a Bahraini
Bahraini: Any person who acquired the Bahraini nationality by virtue of Article (6) of this Act.
In accordance with Article (4) of the same Act, as amended by Act No. (12) (1989), any person is considered a Bahraini, if:
(A) He was born in or outside Bahrain and his father was a Bahraini at the time of his birth.
(B) He was born in or outside Bahrain and his mother was a Bahraini at the time of his birth, provided that his father was unknown or not legally established.
Also, Article (5) of the same Act, provided that:
“A person is considered a Bahraini, if he is born in Bahrain by an unknown father and mother…..”
Therefore any person who does not hold a Bahraini nationality is considered a foreigner, whether he has a known nationality or has no nationality. The decisive factor is the issuance of Bahraini nationality according to the law. It does not matter how long a person stays in Bahrain or what kind of kind of services he receives. Such person is still in the eye of the law looked upon as a foreigner. All Bahraini laws - including Act No. (19) (2006) - deal with him as a foreigner. In accordance with Article (23) of Act No. (19) (2006) , he should obtain a work permit before conducting any business in the Kingdom of Bahrain.
In conclusion, the legal opinion of the Directorate of Legal Affairs is:
(1) The citizens of the GCC member states are exempted from the application of the provisions of Article (23) of Act No. (19) (2006) with regard to obtaining a work permit before conducting business in the Kingdom.
(2) A foreigner who is a wife of a Bahraini and a person without a nationality, both of them should obtain a permit before conducting business in the Kingdom.
DIRECTORATE OF LEGAL AFFAIRS
Last Update: Sunday 26 August 2007
