Firm: AEQUITAS Law Firm LLP
This article discusses how certain travel within Kazakhstan by foreign nationals living in the country has to be notified to the authorities.
Foreign nationals in Kazakhstan are mostly free to travel within the territory but they must register and their hosts must notify the authorities as they do so. Notifying the authorities about foreigners’ arrival and travel is one of the most important requirements under migration law.
Key requirement to notify
Companies and individuals hosting immigrants in Kazakhstan must inform the Internal Affairs Authorities (the ‘IAA’) about their travel within Kazakhstan, within three business days. There are three situations in which notifications are required:
1. When the immigrant arrives - time starts to be calculated from 12:01 am on the day on which the immigrant arrives at the host in Kazakhstan (paragraph 9 of the Entry Rules).
2. If the immigrant changes his or her temporary place of residence in Kazakhstan.
3. If the immigrant moves from one region of Kazakhstan to another for a period greater than five calendar days.
An ‘immigrant’ is a foreign citizen or a stateless person coming to the Republic of Kazakhstan to reside there permanently or temporarily. Article 3 of Law No. 477-IV of the Law of the Republic of Kazakhstan, ‘On Population Migration’, dated 22 July 2011 (the ‘Migration Law’), sets out five main types of immigration to Kazakhstan. There are entry:
· to perform labour activities (including working under an employment agreement and acquiring participation interests/shares in commercial legal entities in Kazakhstan);
· for education;
· to return to historical homeland;
· to reunite family;
· for humanitarian or political motives.
The list does not explicitly mention foreign nationals staying in Kazakhstan on a business trip, but it is reasonable to assume that the requirements extend to these visitors as well.
Who must submit the notification?
The obligation to notify is on the ‘host’. The ‘host’ means either of the following applying to invite immigrants to Kazakhstan for temporary residence and/or providing to them a place of residence:
individuals (a citizen of Kazakhstan or a foreign citizen or stateless person permanently residing in Kazakhstan);
legal entities registered in Kazakhstan.
Many entities/persons could meet this definition. It could be:
the legal entity inviting the foreign national;
the legal entity to which the foreign national is sent on a business trip;
the person at whose place the foreigner stays (including hotels, private accommodation, place of first stay on arrival and other places for residence) and from where the foreign national departed;
the person at whose place the foreign national will temporarily stay (if changing location), etc.
What form should notifications take?
These should be provided in the form set out in Annex 1 to the Passport Registration Rules. This form is really intended just for the first situation (an immigrant arriving), but as there is no other form, we recommend this one is used, but adding the data that must be reported to the IAA for Notifications 2 and 3 (e.g., information about the legal entity acting as host, any change to the temporary place of residence in Kazakhstan by the immigrant and/or any travel to other regions of Kazakhstan).
Application of the basic requirement
While the basic requirement appears simple, practical compliance raises questions. The authors wrote to the Migration Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan (the ‘Department’) with these questions. This article summarises the most topical practical issues on the basis of the Ministry’s response. As a general guide, if a person has doubts about the application of the law to a situation, they should adopt a broad interpretation of the law and notify the IAA.
- Must the IAA be notified only about the foreign national's first arrival at the host , or must the IAA be notified each time the foreign national returns to that place after travelling?
There is a link in the law between the host person's notification about a foreigner's arrival and the required registration of the foreigner, but these are two separate processes and both are required. It is unclear from the law whether notifications are still required even if the foreign national is not required to re-register after initial registration (e.g. if the foreign national left the place of registration for a period not exceeding five days).
The author’s view, as confirmed by the Department, is that the host person must notify the IAA both when the foreigner first arrives, and after any temporary absence.
- If, during a business trip, a foreigner travels to another town (staying in a hotel or apartment), is this a change to the foreigner's temporary place of residence?
Yes. Notification 2 must be given, even if the transfer is for five calendar days or less.
A ‘place of temporary stay (residence)’ 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), so, (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’.
- How does this interact with the rules requiring Notification 3?
The Department’s response was ambiguous. The Department commented 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’.
The Department gave no explicit statement that Notification 2 was unnecessary if travel to another region in Kazakhstan does not exceed the period of five calendar days. Hence, for complete compliance, it is recommended that if the foreigner is travelling away from their original location in Kazakhstan:
for five calendar days or less, Notification 2 be given;
for more than five calendar days, both Notifications 2 and 3 should be given.
- What happens if the traveller does not change hotels, i.e. the traveller goes on multiple day trips to other cities or regions for 5 business days, but returns to their first accommodation each day? Is that a Notification 3 scenario?
This question was not addressed to the Department. In this case, no notification is likely to be required if the person returns to the place of temporary residence each day and the place does not change.
- Must the IAA be notified if the foreigner changes hotels in the same town?
A hotel is a ‘place of temporary stay (residence)’. Therefore, a change of hotels in the same town entails Notification 2.
- Must the IAA be notified only about foreigner’s departure, or is it also to be notified about the foreigner’s travel to another town during a business trip?
The Department provided no direct answer. The author’s recommendation is that notification should be made of arrival in another town.
- Does a notification requirement apply if the foreign national arrives in Kazakhstan under a visa-free regime?
Yes, it is the person providing the place of residence for the foreigner who must notify the IAA.
Note that there are 2 limbs to the definition of ‘host’:
those who apply to invite immigrants to Kazakhstan for temporary residence;
those who provide a place of residence.
The first limb directly applies in the case where a visa is required for the foreigner to enter Kazakhstan (narrow interpretation). The second limb applies in the both cases where a visa is and is not required. Some foreigners may enter Kazakhstan on a visa-free basis (e.g. a citizen of the Eurasian Economic Union or a foreigner from certain countries on an official trip for business purposes).
At the same time, the Migration Law does not define who should be considered as a 'person applying to invite immigrants'. The Passport Registration Rules and the Entry Rules do not define a ‘host’. This gives rise to variable interpretations of those rules by IAAs across different regions of Kazakhstan. Therefore, it is quite possible that the IAAs in different regions of Kazakhstan would be applying the broad interpretation of the 'host' concept for the purposes of notification, also including legal entities at whose place the foreign national (even in the case of visa-free entry) is working or temporarily staying on a business trip.
Does a notification requirement limit the foreigner's right to freely move about the territory of Kazakhstan?
Article 21 of the Constitution says: ‘Everyone who has a legal right to stay on the territory of the Republic of Kazakhstan shall have the right to freely move about its territory and freely choose a place of residence, except in cases stipulated by law’.
Foreign nationals’ right to freely move about is not limited by the notification procedure.
- Protection of the right to privacy
Article 18 of the Constitution establishes a right to privacy for everybody (including foreign nationals). The practical operation of the law may be incompatible with this right because the ‘host’ must hold information about the foreign national’s travel. Yet, the ‘host’ may not always be able to get the information they need because:
· the host may be unaware of the business trip;
· the employer may not know an employee’s vacation plans;
· there may not yet be an employment relationship, or the employment relationship may have been terminated.
So how can the ‘host’ legitimately obtain the information they need?
The Department responded to this query with the following explanation: the obligation on hosts is ‘to notify the facts known to them, which are practicable without infringing on the foreigner's constitutional rights’.
This does not eliminate the risk of the IAA claiming that the host failed to get the necessary information. Hosts should keep records to protect themselves as far as possible from this risk. For example, a host might obtain the foreign national’s consent to have and disclose the necessary information.
- Liability for violating the notification requirements
There is no express administrative fine for violating the notification requirements but the inspecting governmental authority will have to take measures within its competence (e.g. issue an ordinance) to prevent any new violations. Failure to fulfill a lawful requirement may result in fine (the amount of fine will depend on the circumstances) with possible suspension of permits for certain types of activities.
- Does notification to IAA exempt persons from complying with other laws requiring registration or notification?
No. Beside notifications to IAA, Kazakh law requires other notifications, including:
o mandatory notification and statistical reporting about the engagement of foreign labour under Law No. 482-V of the Republic of Kazakhstan "On Population Employment" dated 6 April 2016;
o registration of foreigners and their re-registration if they change their temporary place of residence.
The notification obligations that were discussed in this article are imposed on ‘hosts’. The obligations are complex and often overlap. This creates an administrative burden for organisations to ensure compliance. It would be helpful for affected organisations to seek clarification from the Department and the regional IAAs where the application of the laws is unclear. In this way, the practical operation of the law can be refined and the administrative burdens on organisations can be minimised.