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

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.

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:

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).