In which cases an employer bears responsibility?

In Azerbaijan migration related issues are regulated with the Migration Code which entered into force on August 1, 2013. The Code establishes norms concerning implementation of the state policy in the sphere of migration, regulation of migration processes and relations arising in this sphere in our republic and legal status of foreigners and stateless persons in the Republic of Azerbaijan.

Incorporation of all the norms regulating relations in migration field in single document has facilitated awareness of migration processes stakeholders –relevant state Agencies, our citizens, as well as foreigners and stateless persons – on their rights and freedoms, as well as the procedures of obtaining information on the scope of cases which result in liability, as well as other regulatory provisions related with migration.

Relevant procedures on the areas regulated by the Migration Code have been facilitated and a number of privileges are envisaged for foreigners and stateless persons. The previous legislation did not allow extending validity of permit for temporary residence, as well as work permit more than four times, but this limit was removed with the current legislation. Moreover, the number of cases where work permit is not required has been increased. One of these cases is engagement in entrepreneurship activity of foreigners and stateless persons on the territory of the Republic of Azerbaijan.

Furthermore, the Law of the Republic of Azerbaijan “On state fee” was amended, the amount of state fee to be paid for issuance and extension of work permits to foreigners and stateless persons for carrying out paid labour activity in the Republic of Azerbaijan has been decreased and determined as 350 manats for up to 3 months, 600 manats for up to 6 months and 1000 manats for up to 1 year. By the time the amendment was made to the aforementioned law the amount of the state fee was determined 1000 manats irrespective of the period of the work permit.

Foreigners and stateless persons obtain a work permit through legal persons, physical persons engaging in entrepreneurship activity without establishing legal person, and branches and representations of foreign legal persons employing them and can carry out paid labour activity in the Republic of Azerbaijan only after work permit has been obtained for them by the employer.

The aforementioned employers should employ foreigners and stateless persons only in their own working place and should conclude a labour contract in compliance with validity period of the work permit. Concluding labour contract with foreigners without obtaining work permit is not allowed.

According to Article 578 of the new Administrative Offences Code which entered into force on March 1 of the current year for involving foreigners or stateless persons by employer in labor activity by violating requirements of Migration Code without obtaining work permit officials are imposed a fine in the amount from three thousand up to four thousand manats and legal persons are imposed a fine in the amount from fifteen thousand up to twenty thousand manats. In case the same offence is committed in regard to three and more foreigners or stateless persons officials are charged with fine from five thousand up to seven thousand manats, legal persons from thirty thousand up to thirty five thousand manats.

Furthermore, according to the same Article if the employer provides work for the foreigner and stateless person out of his/her working place, he/she bears liability for that.

Collecting and keeping passports or other identity documents of foreigners and stateless persons involved in labor activity by employer has been directly prohibited by the legislation.

According to the “Regulation on State Migration Service of the Republic of Azerbaijan” approved with Decree No. 560 of the President of the Republic of Azerbaijan dated from March 19, 2007 one of the duties of State Migration Service is to investigate existence of relevant status and work permit of migrant workers at their work places and take relevant measures in a way envisaged by the legislation. According to the Migration Code observance of the normative legal acts regulating use of foreigners and stateless persons as labour force and the requirements of the aforementioned Code is inspected by State Migration Service. Foreigners and stateless persons involved in labour activity without work permit, as well as employers employing them are involved in liability in a way envisaged by the law.

In general, in order to carry out entrepreneurship activity citizens of the countries with visa regime should come to the country upon business visit visa. Business visit visa is issued to foreigners and stateless persons for the purpose of establishing business relations or cooperation in the Republic of Azerbaijan on the basis of application of government authorities of the Republic of Azerbaijan, legal persons acting in the Republic of Azerbaijan or physical persons engaging in entrepreneurship activity without establishing legal person, as well as branches and representations of foreign legal persons or to foreigners and stateless persons arriving with a document certifying that s/he is engaged in entrepreneurship activity in the Republic of Azerbaijan. On this type of visa, the period of stay in the country is defined for up to 180 days.

According to the Migration Code in case foreigners and stateless persons engage in entrepreneurship activity in the Republic of Azerbaijan permit for temporary residence on the territory of the Republic of Azerbaijan is issued to them. It is only considered as a ground for issuance of a permit for temporary residence in the territory of the Republic of Azerbaijan, when those persons work actually by concluding labor contract with at least 5 persons on full time employment or 10 persons on part-time employment. In this case, at least 80 percent of the workers are required to be the citizens of the Republic of Azerbaijan. 

Foreigners and stateless persons engaged in entrepreneurship activity in the Republic of Azerbaijan can submit application to obtain permit for permanent residence on the territory of the Republic of Azerbaijan after temporarily residing at least 2 years on the territory of the Republic of Azerbaijan.

Moreover, provision on issuance of permit for temporary residence for up to 3 years for persons investing 500.000 manats in the country economy is one of the novelties taking into consideration the development pace of our country.

Today ensuring representation of local labour force in big projects implemented in our country is one of the key priorities. Because, as the President of Azerbaijan said, citizen of the country should benefit from its development in the first place.

From the point of this policy State Migration Service has made a contribution to the implementation of nationalization program in energy, oil and gas projects of the country. According to the provisions reflected in and envisaged by the “Contract of the Century” each of the operator, contractor and subcontractor companies functioning in oil and gas deposits of our country has worked out and completed their own nationalization program and nationalization program for 2014-2018 has been approved. In compliance with provisions of this program in 2018 95 per cent of total number of employees in energy sector together with expert preparation should consist of the citizens of the Republic of Azerbaijan. 

The “List of activity areas where obtaining work permit is not required for foreigners and stateless persons who are in an assignment in the Republic of Azerbaijan for the period not exceeding 90 days” was approved with the Decision of the Cabinet of Ministers dated from December 4, 2014. The following spheres are included in this list:

1.    Mining industry

2.    Manufacturing industry

3.    Supply with electrical energy, gas, steam and conditioned air

4.    Information and communication

5.    Finance and insurance

6.    Education

7.    Transport

8.    Water supply, treatment of dirt waters and waste.

Obtaining work permit is necessary for foreigners arriving to engage in the activities not envisaged by the aforementioned list.

Taking into account the situation of domestic labor market, demand for manpower, existence of vacancies which are not applied by the citizens of the Republic of Azerbaijan with professional skills and qualifications relevant for requirements of the job, ability of employment service bodies to meet requirements of employers for manpower at the cost of local labor resources, as well as necessity of attracting highly qualified foreign specialists the “Rules on determination of the labour migration quota” was approved with the Decision No. 124 of the Cabinet of Ministers of the Republic of Azerbaijan dated from March 14, 2016.

Unlike the previous Rule in compliance with the new document employers should submit forecast-information on demand for foreign labour force for the next year by indicating professions according to Employment Classification to the State Migration Service of the Republic of Azerbaijan by May 1 of every year in order to determine the demand of employers for foreign labour force. Determination of professions according to Employment Classification is a single source.

Furthermore, one of the novelties is that the Forecast-information Form on demand for foreign labour force determined by the abovementioned Rule was placed on the webpage of State Migration Service (www.migration.gov.az) and are received online.

A number of services are rendered by State Migration Service at “ASAN service” centers which were established in order to render services to citizens with more quality, conveniently, in modern methods and by application of modern technologies by state agencies, as well as to ensure satisfaction of citizens. As applications on issuance (extension) of permit for temporary residence on the territory of the Republic of Azerbaijan, issuance of work permits for carrying out paid labour activity, issuance (extension) of permit for permanent residence, as well as queries on establishment of the person’s affiliation to the citizenship of the Republic of Azerbaijan are received.           

In order to ensure transparency and objectivity in the field of reviewing complaints of physical and legal persons engaged in entrepreneurship activity, to protect the rights and legally protected interests of persons in this sphere, as well as to ensure implementation of the Decree No. 762 of the President of the Republic of Azerbaijan dated from February 3, 2016 the Appeal Council of State Migration Service and its Secretariat of the Council was established with the Order of the Chief of State Migration Service, and its members was approved.

The first meeting of the Appeal Council has been already held. Broad opinion exchange was conducted on organizational matters, efficient organization of the activity of the Appeal Council and the Secretariat of the Council, issues on ensuring effectiveness on processing entrepreneurs’ applications, as well as tasks standing ahead were discussed.

Along with improvement of entrepreneurship atmosphere in the Republic of Azerbaijan, establishment of conditions for foreign investments, as well as opening of new work places in our country, all the aforementioned serves to stimulation of successful activity of foreign entrepreneurs functioning in these spheres by observing requirements of migration legislation.

Vali Naghiyev

First Deputy Chief of State Migration Service

III rank state migration service counselor

“Business life” magazine No. 13,   2016