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OBLIGATION TO INFORM MIGRATION AUTHORITIES ABOUT FOREIGNERS' TRAVEL IN KAZAKHSTAN: Requirements and

January 2018 - Employment. Legal Developments by AEQUITAS.

More articles by this firm.

Larissa Yemelyanova, Senior Associate, AEQUITAS Law Firm LLP

Foreigners entering Kazakhstan must register in a timely fashion.  Afterwards, as a rule, the foreigners are free to travel in the Kazakhstan territory.

At the same time, travelling in the Kazakhstan territory requires timely re-registration and notification of migration authorities.

Notifying migration authorities of foreigners' arrival and travel within the territory of Kazakhstan is one of important, but the least known and poorly performed, requirements of the migration legislation.

In this article, we will dwell on the key requirements and practical nuances of notifying migration authorities about foreigners' arrival and stay in the territory of Kazakhstan.

1. KEY REQUIREMENTS TO NOTIFYING MIGRATION AUTHORITIES

Regulatory Legal Acts

Hereinafter, we will be referencing the following key local regulatory legal acts applicable to notification matters.

Abbreviated name

Name

Migration Law

Law No. 477-IV of the Republic of Kazakhstan, On Population Migration, dated 22 July 2011, as amended as of 11 July 2017.

Foreigners Legal Status Law

Law No. 2337 of the Republic of Kazakhstan "On the Legal Status of Foreigners" dated 19 June 1995 (as amended as of 11 July 2017).

Passport Registration Rules

Rules for Registering Passports of Immigrants, Provision of Information by Inviting Persons on Immigrants Staying with Them, Manufacture and Issuance of Migration Cards, Movement of Immigrants, Entry of Immigrants into Certain Areas (Territories) Closed for Visit by Foreigners, and Transit of Foreigners and Stateless Persons in the Territory of the Republic of Kazakhstan, approved by the Order No. 83 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 27 January 2016.

Entry Rules

Rules for Immigrants Entry and Stay in the Republic of Kazakhstan, and Their Exit from the Republic of Kazakhstan, and Rules for Migration Control and Recording of Foreign Citizens and Stateless Persons Illegally Crossing the State Border of the Republic of Kazakhstan, Illegally Staying in the Territory of the Republic of Kazakhstan, and Persons Prohibited to Enter the Territory of the Republic of Kazakhstan, approved by the Decree No. 148 of the Government of the Republic of Kazakhstan dated 21 January 2012 (as amended as of 7 June 2017).

Invitation Issuance Rules

Rules for Issuing Invitations for Entry into the Republic of Kazakhstan to Foreign Citizens and Stateless Persons, and for Issuance, Cancellation and Reinstatement of the Republic of Kazakhstan Visas and Their Term Extension and Shortening, approved by the Joint Order No. 1-1-2/555 of the Acting Minister of Foreign Affairs of the Republic of Kazakhstan, dated 24 November 2016, and Order No. 1100 of the Minister of Internal Affairs of the Republic of Kazakhstan, dated 28 November 2016.

Obligation to Submit Notifications

Companies and individuals inviting a foreigner to Kazakhstan must submit information (written notification) to internal affairs authorities (hereinafter, the IAA) about the foreigner's travel in the Republic of Kazakhstan, within three business days, in the following instances:

Conventional designation

Type of notification

Regulatory substantiation

Notification 1

About immigrant's arrival

ATTENTION: The stated periods start to be calculated from 12:01 AM of the day on which the immigrant arrives to the inviting person (p. 9 of the Entry Rules).

  • Article 6.4 of the Migration Law;
  • Paragraph 2 of the Passport Registration Rules;
  • Paragraph 9 of the Entry Rules.

Notification 2

About immigrant's changing the temporary place of residence in the Republic of Kazakhstan

  • Paragraph 10 of the Entry Rules
  • Paragraph 13 of the Passport Registration Rules.

Notification 3

About immigrant's departure to another region of the Republic of Kazakhstan for a term exceeding five calendar days

  • Paragraph 13 of the Passport Registration Rules.

Thus, the inviting persons must submit notifications, if the foreigner is an immigrant.

An immigrant means a foreign citizen or a stateless person coming to the Republic of Kazakhstan for a temporary or permanent residence (Article 1.8 of the Migration Law).

The temporarily staying foreigners are all foreigners holding no permanent residence permit in Kazakhstan (Article 4 of the Foreigners Legal Status Law).

The main types of immigration are as follows: entry in order to perform labor activities (including work under an employment agreement and acquisition of participation interests/shares in commercial legal entities in Kazakhstan), get education, return to historical homeland, reunite the family; and entry for humanitarian or political motives (Article 3 of the Migration Law).

In order to avoid the risk of violating the Kazakh legislation, this article also considers foreigners staying in Kazakhstan on a business trip (to conduct negotiations, enter into contracts, participate in conferences, round tables, etc.) as immigrants, due the their "temporarily staying" status, despite the fact that the purposes of their stay are normally not included in the list of the main types of immigration.

Kazakhstan's Administrative Code No. 235-V of 5 July 2014 is expected to be amended to make the inviting persons administratively liable for untimely notifying about immigrants staying with them.

2. PRACTICAL NUANCES OF MIGRATION AUTHORITIES NOTIFICATION

The seemingly simple requirements to notify the migration authorities cause the inviting persons' questions, which are essential for accurately complying with legislation.

Let us review the most topical ones, subject to the written clarifications provided on 2 March 2017 by the Migration Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan (hereinafter, the Department) in response to enquiry from AEQUITAS Law Firm.

The information may prove to be useful mostly for those companies inviting foreigners for business purposes and to perform labor activities in Kazakhstan.

In all disputable situations, we would deem it appropriate to construe the legislative requirements as broadly as possible and notify the IAA in all cases, in order to prevent possible adverse implications for the inviting persons, employers and foreigners.

2.1- Must the IAA be notified only about the foreigner's primary arrival at the inviting person's place, or is it required to be done each time the foreigner returns from a business trip, vacation or another travel?

The regulatory legal acts quoted above suggest that the inviting person's notification about a foreigner's arrival is associated with control over the latter's timely registration.  This causes a question of whether repeat notifications are to be submitted in case the foreigner has already been registered and is not required to re-register (e. g., if the foreigner was absent from the place of registration for a period not exceeding five days).

In our view, the notification's controlling function implies notifying in all cases of foreigner's arrival (both primary, and after a temporary absence).  The Department is also of the opinion that the IAAs are to be notified in cases a foreigner returns from a travel as well.

2.2- Would a foreigner's travel and accommodation at a hotel or rented apartment in another town for the period of business trip considered as a change of the foreigner's temporary place of residence?  If yes, then must the IAA be notified about the foreign employee's travel on business trip for any number of days, including up to five calendar days, or only in case of travelling for more than five calendar days, as per p. 13 of the Passport Registration Rules?

The Department's opinion on this issue, same as the initial legal regulation, is ambiguous.

On the one hand, according to the Department,"a foreigner's transfer to a hotel in another town for the time of a business trip or vacation would refer to changing the temporary place of residence."  Hence, the Notification 2 would be in effect.

This conclusion is based on the definition of the "place of temporary stay (residence)," which includes a building, premises or lodging with an address, which is not the place of residence and at which the person is staying (residing) on a temporary basis (Article 1.17-1 of the Migration Law).

On the other hand, the Department comments that "notification about foreigner's travel on business trip to other regions of the Republic of Kazakhstan is to be submitted to the internal affairs authorities at the place of primary stay only in the event the aggregate period of travel is more than five calendar days," i. e., it applies Notification 3 as well.

For the avoidance of statutory violations, we deem that in the case under consideration it is necessary to submit both types of notifications.

2.3- Must the IAA be notified only about foreigner's departure, or is it also to be notified about the foreigner's arrival to another town during a business trip?

The Department provided no direct answer.  However, if interpreting the notification requirements broadly and taking into account the answers to previous questions, it is also required to notify the arrival to another town.

2.4- Who must submit the notifications:
– the legal entity inviting the foreigner (employer);
– the legal entity to which the foreigner is sent on a business trip;
– the person at whose place the foreigner was staying and from whose place the foreigner departed;
– the person at whose place the foreigner will be temporarily staying at the new address?

Pursuant to Article 1.10-1 of the Migration Law, the inviting person means individuals (a citizen of the Republic of Kazakhstan or a foreign citizen or stateless person permanently residing in the Republic of Kazakhstan) or legal entities registered in the Republic of Kazakhstan applying to invite immigrants to the Republic of Kazakhstan for temporary residence and/or providing to them a place for residence.

Despite such Migration Law's limited definition of inviting persons, there is still a risk that it may be interpreted broadly inasmuch it applies to the issues of notification (please also see the answer to the following question).

2.5- Must the legal entity inviting a foreigner (to work, to conduct negotiations, etc.) submit notifications in respect of such foreigner, if he/she has arrived in the Republic of Kazakhstan under a visa-free regime?

The definition quoted in the answer to the previous question suggests that the inviting persons are those persons applying to invite immigrants to the Republic of Kazakhstan.

In case a foreigner enters Kazakhstan on a visa-free basis, no application to invite an immigrant to the Republic of Kazakhstan for temporary stay is submitted.

Such application (i. e., a written application for the issuance, cancellation or reinstatement of the Republic of Kazakhstan visas and their term extension or shortening by the inviting person and by the visa recipient intending to visit the Republic of Kazakhstan) is submitted only in the framework of visa issuance.

This follows from the definition of the term "application" provided in paragraph 3.13 of the Invitation Issuance Rules.

The Department has clarified that visa-free stay of a foreigner (e. g., a citizen of the Eurasian Economic Union (hereinafter, the EAEU) or a foreigner on an official trip for business purposes) does not release the inviting person from notifying the IAA.  Pursuant to Article 1.10-1 of the Migration Law, the persons inviting a foreigner in case of a visa-free entry are understood as persons providing a place for the foreigner's residence.

Thus, if applying a narrow interpretation, one might conclude that in case a foreigner enters Kazakhstan under a visa-free regime, the inviting company is not bound by the obligation to notify the IAA.  Such obligations lie with the person providing the place of residence for the foreigner.

At the same time, the Passport Registration Rules and the Entry Rules contain no definition of the term "inviting person," which may be interpreted broadly in the context of those Rules.  Therefore, it is quite possible that the IAAs in different regions of Kazakhstan would be applying the broad interpretation of the "inviting person" concept for the purposes of notification, also including therein the legal entities at whose place the foreigner (even in case of visa-free entry) is working or temporarily staying on a business trip.

2.6- Through what legitimate methods may the inviting person control, without infringing on the personal constitutional rights, a foreigner's (including EAEU citizen's) private life in case of his/her changing the place of residence or travelling in the territory of Kazakhstan on private affairs during off-the-job time?

In order to notify about a foreigner's travel, the inviting person must possess information thereof.  The persons the foreigner is staying at may be unaware of his/her business trip and the employer company may be unaware of where the employee went to during his/her vacation.

The rights to privacy and personal and family secret of any person, including foreign, are protected by constitutional rules.  Outside working time (if the foreigner is in labor relations) or in case the employment agreement is terminated or not in place (e. g., in case the foreigner arrives for negotiations), the inviting company may not always be able to control, on legitimate grounds, the foreigner's travel.  The lessor of residential premises has even less legal options.

As regards such situations, the Department explains that "understood as informing (notification) about the change of the place of residence or departure (business trip or vacation) are the inviting persons' actions to notify about foreigners' travel facts known to them, which are practicable without infringing on the foreigner's constitutional rights."

This explanation, nonetheless, does not eliminate the risk of the IAA claiming that the inviting persons failed to ensure the obtainment, and accordingly, the provision of the required information on a legitimate basis.

In order to mitigate such risks, it is recommended to draw up the documents (foreigners' obligations, contractual provisions, employer's acts, etc.), which could protect the inviting persons against unjustified claims by the inspecting authorities, without infringing on the foreigners' personal rights.

2.7- Does notification to IAA exempt from submitting other information to the authorized agencies of the Republic of Kazakhstan and from foreign citizen's re-registration?

Beside notifications to IAA, the Kazakh legislation provides for other types of informing the governmental agencies, including:

  • Notifications in the field of population employment: The Law No. 482-V of the Republic of Kazakhstan "On Population Employment" dated 6 April 2016 (as amended as of 30 June 2017) requires submission to the local population employment authority of the information about foreigners' entry in the Republic of Kazakhstan under intra-corporate transfer, about employment of foreigners based on qualification compliance certificate for individual job placement and about termination of labor relations with them, and requires provision of primary statistical data on the employed foreign labor;
  • Registration of foreigners and their re-registration within the established timeframes in case of their changing the temporary place of residence.

Submission of notification by the inviting persons to IAA does not exempt foreigners and inviting persons from the necessity to comply with other types of informing governmental agencies, including registration and re-registration.

ATTENTION: The timely registration (re-registration) obligation lies not only with foreigners themselves.  The persons inviting foreigners are liable for failure to take measures to timely register foreign citizens and stateless persons, to execute the documents for their entitlement to stay in the Republic of Kazakhstan, and to have foreigners exit from the Republic of Kazakhstan upon expiration of a certain term of stay.

2.8- In what form is it required to notify about foreigners' travel?

Pursuant to pp. 2 and 13 of the Passport Registration Rules, Notifications 1, 2 and 3 are to be submitted in the form provided in Annex 1 to the Passport Registration Rules.

This form, however, is not adapted to some instances of notification.  In particular, the form is drawn up on behalf of the individual to whom the foreigners have arrived, i. e., is designed as Notification 1 on the part of an inviting individual.

Meantime, Notifications 2 and 3, pursuant to p. 13 of the Passport Registration Rules, must also be submitted according to that form.  However, in this case, the inviting persons may be not only individuals, but also legal entities, and not only those at whose place the foreigner is staying, but also the companies inviting the foreigner for work or business purposes.

Since in such cases it does not seem possible to literally comply with the requirements of the Passport Registration Rules relating to the form of notification, the way out may be to prepare the notification on the basis of the said form to the extent possible, but adding the data which must be reported to IAA by virtue of statutory requirements.

* * *

It would be advisable for the companies, for which the issues raised in this article are topical, to additionally, on one's own behalf, make necessary enquiries with the Department and/or regional IAAs in Kazakhstan.  This might further facilitate the establishment of a uniform law-application practice and clarification of legislative requirements, and enable the companies to officially rely in their activities on the responses received and invoke those responses in case of claims, subject to the good faith principle envisaged by Article 14 of the Code No. 375-V of the Republic of Kazakhstan "Entrepreneurial Code of the Republic of Kazakhstan" dated 29 October 2015 (as amended as of 3 July 2017).

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