Attorneys who practice global immigration must be sensitive to potential admissibility challenges and strategies for addressing such issues. It is all the more complex as the law varies country to country. Below, we will provide an overview of admissibility issues in Argentina, Israel, Nigeria and the United Kingdom including criminal issues, host country challenges, health and public charge concerns as well as potential admissibility issues related to age, LGBTQ gender and nationality. Guidance to recognize and manage these red flags of admissibly will be provided for each country.
By Elise A. Fialkowski, Hector Gabriel Celano, Laura Devine, Kunle Obebe, & Liam Schwartz
ARGENTINA
Criminal Issues
Argentina’s legal framework on admissibility and removal on criminal grounds is contained in Article 29 (“impedimentos”) of the Immigration Act (25.871).
Currently, executive decree 70/2017 (01/27/18) amended the inadmissibility on criminal grounds making a foreign person inadmissible or removable if convicted for a crime that is punishable by imprisonment regardless of the length of the sentence.
The new regulation marks a significant departure from prior law with broad impact. Under prior law, inadmissibly was triggered only for crimes resulting in imprisonment for 3 years or more. Since most crimes (at least in Argentina) carry a sentence of imprisonment, the new regulation results in inadmissibility and removal for almost any crime. In order to trigger inadmissibility, either a conviction or a “procesamiento” is required. A procesamiento is like an indictment but there isn’t really an equivalent under common law criminal systems.
This new regulation allows more deportations and reflects a shift in Argentina to [a much tougher immigration policy]. There is no distinction of the time of conviction, time served, type and seriousness of the violation or if he/she even represents a threat to public safety.
Immigration defense attorney’s strategies to avoid triggering Article 29:
There are several strategies to avoid triggering inadmissibility under Article 29:
The date of the conviction must be reviewed as there is a limit on using convictions after a certain period of time pursuant to Article 51 of the Argentine Criminal Code. Depending on the type of crime, after a certain period of time has passed since the conviction, the conviction cannot be used as grounds for inadmissibility or removal.
An in-depth analysis of the “elements” of the crime is also very important in order to determine if the crime has an equivalent in Argentine criminal laws. Although some crimes can have an identical matching literary translation from English to Spanish, when you look into the elements of the crimes they are not equivalent. (Ex. Trespassing, Battery, etc.).
*Avoid filing petitions under categories (permanent and temporary residency) that require presenting criminal background checks.*
Offenses that may be considered crimes in other countries aren’t necessarily crimes in Argentina. Some examples are below:
DUIs are not considered crimes in Argentina; they are municipal offenses
Drug possession for recreational use is not considered a crime neither “attempted” possession of controlled substances
Prostitution (offer/seek) is not a crime.
Current Development
In March 2018, the Federal Court of Appeals declared the amendment unconstitutional [meantime decree is effective], so a final decision by the Supreme Court is pending to resolve the issue.
Host Company Challenges
It is important to obtain a legal analysis of convictions by local counsel in Argentina before deciding which of the assignees will be sent to Argentina. To best obtain the necessary information and overcome host company challenges, the following should be considered:
The company should obtain agreement from the assignee to share criminal background check data with local counsel.
Consider using short-term transitory permits that do not require filing criminal background checks or answering questions about criminal issues.
To best avoid conflict of interest issues, obtain (i) advance consent from assignee to share data with his/her employer and (ii) advance notice that in the event of conflict of interest, the Attorney will represent the company.
If a public figure (typically entertainment industry) who is known for having criminal records will need to visit Argentina to fulfill activities or for work, before signing binding contracts, selling tickets, etc., it is advisable to start with Consular processing of the visa, and only move forward with business plans once the visa approval is confirmed. (Recent case: Boxer Mike Tyson rejected entry to Argentina in 2017)
Health and Public Charge Concerns
Health issues are not really a concern under the Argentine regulations and policies. Health exams are not required to be the beneficiary of an immigration status. Public charge: does not affect family-based petitions sponsored by Argentine citizens. Legal Permanent Residents though can be required to prove financial means to support their relative.
Individual issues inclusive of Age, LGBTQ, Gender, Nationality
In Argentina, neither age, gender nor LGBTQ (same sex marriage was enacted into law in 2010 by congress, so same-sex marriages receive full recognition under Argentine law) result in inadmissibility.
Nationals of some countries, however, can face delays. Some foreigners with a nationality considered “sensitive” by the Argentine government require authorization from the Federal Agency of Intelligence which can delay processes significantly.
ISRAEL
Criminal Issues
In general, foreign nationals are inadmissible to Israel if they have been convicted of a serious offense such as one involving fraud, assault or trafficking in a controlled substance. Israeli consular posts in some countries require visa applicants to submit a police clearance report as a condition to visa issuance. All work visa applications require an officer of the employer to submit an Affidavit providing, inter alia:
“To the best of my knowledge, the employee is not suspected and has never been convicted of a criminal offense the circumstances of which should prohibit his entry into Israel.”[1]
Host Company Challenges
A common challenge for host companies involves short-term visits by foreign professionals. These visits often involve activities comprising an overlap between a pure business visit and a formal work assignment. Regrettably, since the need for these short-term visits often arises from today to tomorrow, host companies lack the time to file and obtain proper work permits for the arriving foreign professional.
The Israeli government has sought to resolve this challenge by introducing an expedited work visa process for foreign professionals arriving for a visit of 45 days or less. According to the implementing regulation:
*“This procedure is intended to balance international economic needs in a global age, which sometimes require the entry and employment of foreign experts for short periods and within short timeframes, and the duty of the immigration authorities to properly supervise the entry and employment of foreign nationals in Israel, as well as to collect any fees prescribed by law.”*
The regulation adds:
“It should be emphasized that a foreign national who wishes to enter Israel for a short period for business purposes such as investigating investment opportunities, participating in business negotiations, meetings etc., may carry out such activities during his stay in Israel under a B/2 (tourist) visa and permit of stay, without need for carrying out the process set out in this procedure.”[2]
This expedited procedure takes about a week. Parenthetically, the individual employee must be a national of one of the nearly 100 countries included in Israel’s Visa Exemption Program.[3]
Health and Public Charge Concerns
Israeli embassies in some countries (such as China) require visa applicants to present (1) a medical certificate indicating the individual does not suffer from a series of infectious diseases such as tuberculosis and hepatitis and (2) a vaccination card. [4]
To prevent public charge issues, in many cases companies must commit to paying foreign experts a base monthly wage in an amount that is at least twice the prevailing wage for Israeli salaried workers. As of April 8, 2018, this prevailing wage was NIS 10,208 (about $2,905).
Individual issues inclusive of Age, LGBTQ, Gender, Nationality
Israeli visa policy is “color-blind” when it comes to LGBTQ, age and gender issues. Israeli has promoted social equality for LGBTQ people for many years; indeed, Tel Aviv is often referred to as one of the most gay-friendly cities in the world.
Perhaps counterintuitively, there are no nationality-based travel bans to Israel. Nationals of any and every country regularly apply for, and receive entry visas to Israel, although the security checks for some nationalities (UAE, for example) can take longer than others.
One “hot” individual issue involves those who publicly promote a boycott of Israel. In January 2018, the Israeli government published a list of 20 organizations it says promote the boycott of Israel; members of these groups are now inadmissible to the country.[5]
NIGERIA
The Federal Government of Nigeria recently introduced some compliance fines and penalties in the new Immigration Act 2015 and the Immigration Regulations 2017. The penalties are to ensure compliance with the new regulations. This article considers the various penalties.
The Act and regulations introduce a number of offences and penalties that may arise due to the breach of the Regulations and Act. Unlike the Immigration Act 1963, the Act clearly states financial penalties in line with modern reality.
The penalties are divided into individual and corporate penalties. The Act therefore places a responsibility on the foreign national to ensure compliance with the regulations.
Individual Penalties
(1) A person who – (a) aids or assists any person to enter Nigeria in contravention to this Act; (b)while refusal of admission is in force in relation to him enters or remains within Nigeria otherwise than in accordance with the directives or under the authority of an immigration officer; (c)contravenes or fails to comply with any condition imposed on him under this Act; (d)restricts or obstructs any immigration officer in the lawful execution of his duty, commits an offence and any offence under this subsection, being an offence committed by entering or remaining in Nigeria shall be deemed to continue throughout any period during which the offender is in Nigeria thereafter.
(2) If a person knowingly harbours any person whom he knows or has reasonable ground for believing to have committed an offence under subsection (1) of this Section, being an offence committed by entering or remaining within Nigeria he commits an offence.
(3) If a person – (a) makes or causes to be made to any immigration officer any return, statement, or representation which he knows to be false or does not believe to be true;(b) refuses or fails to produce or furnish to any such officer any document or information which he is required to produce or furnish to that officer under this Act or otherwise obstructs any such officer in the exercise of his function there under, or (c) without lawful authority, alters any document issued or made under or for the purpose of this Act or has in his possession any forged or altered passport or other travel document, or produces or reproduces any travel document without lawful authority, commits an offence.”
Regulation 44 (1-3) is a repetition of S.56 (1-3) of the Act and therefore fails to provide guidance on how the Act will be implemented.
The Act provides two sets of penalties for breach of the s. 56 (quoted above)
(4 ) Any person who commits any of the offences prescribed under subsection (3) of this Section is liable to imprisonment for a term of five years or fine of One Million Naira or both.
(5) Any person who commits any of the offences prescribed under subsection (3) of this Section is liable to imprisonment for a term of five years or fine of One Million Naira or both.
An important point to note is breach or failure to renew a work visa or residence permit:
“ Any expatriate person who fails, neglects or refuses to apply for the – (a) regularization of his stay in Nigeria within the stipulated period of three months; (b) renewal of his Business Transit, Visitors Pass, or Temporary Work Permit (TWP) after expiration; or (c) renewal of his residence permit 30 days after its expiration commits an offence and is liable to imprisonment for a term of three years or a fine of five hundred thousand Naira or both.
*The above section is also repeated in Regulation 47 (5) (a-c) and therefore does not give clarity on implementation of the Act. The regulation states that failure to obtain or renew the various work visas or residence permits is an offence that is punishable with three years imprisonment or a fine of five hundred thousand naira or both.*
It is strange that the Act creates a pseudo criminal element by including an imprisonment term of up to ten years. It is our opinion that breaches of immigration laws and regulations all over the world would lead to deportation of the foreign national and financial penalties on employers. We find the five to ten year imprisonment term not in line with international best practice. The Act also places responsibility on the employer of a foreign national under employment who is liable to repatriation to inform the Comptroller General before the foreign national departs the country.
“It is an offence under this Act for any employer of persons liable to repatriation to discharge any such persons without giving notice to the Comptroller-General of Immigration, or for any such employed person to be re-designated, or change his employment without the approval of the Comptroller-General of Immigration, and upon conviction the employer if not a citizen of Nigeria and the employed person, as the case may be and his dependents shall, if the Minister thinks fit, be deported and the business of the employer may be wound up as prescribed by this Act.”
The Regulations further provide that an employer who fails to notify the Comptroller of the re-designation or change of employment of a foreign national has committed an offence.
“(1) An employer of a person liable to repatriation who -(b) causes such a person to be re-designated or change his employment, without the approval of the Comptroller-General commits an offence under section 58 of the Act and is liable on conviction to a term of five years imprisonment or to a fine of one million Naira or both.”
It is important to note that the Regulations do not take into account the corporate nature of an entity. This therefore means that any of the principal members of the company may be regarded as ‘employer’ and therefore may be liable to a term of five years imprisonment or fine of five hundred thousand naira.
The Regulations also point out that, in the event the employer is a foreign national in breach of the provisions of the Regulations above, the employer and his dependents may be deported, if the Minister thinks fit, and the business wound up.
It is also strange that the minister’s discretion is required in the instant case. I am of the opinion that matters that deal with deportation rest with the CGI and the discretion of the Minister is not required. However, we must also take into account that the employer’s business would have to be wound up; which is not within the purview of the Comptroller and therefore the Minister may be notified of the instant case.
The Act expressly provides for alteration of travel documents:
“A person who alters or assists another in altering his travel document, or who produces or reproduces, or assists in the production or reproduction of any such travel document without lawful authority, commits an offence and is liable on conviction to imprisonment for a term of five years or to a fine of one million Naira or both.”
The Regulations repeat the above section and fail to provide clarity as regards implementation of the Act.
The Act also makes provisions relating to Nigerians in breach of its provisions. The Act provides that the Nigerian passport of a Nigerian who breaches the provisions of the Act may be forfeited and shall not be returned except as the Minister directs.
The Act further provides for Nigerians deported for immigration or criminal offences and for obtaining multiple passports.
regularization of his stay in Nigeria within the stipulated period of three months;
renewal of his Business Transit, Visitors Pass, or Temporary Work Permit (TWP) after expiration; or
renewal of his residence permit 30 days after its expiration commits an offence and is liable to imprisonment for a term of three years or a fine of five hundred thousand Naira or both.[9]”*The above section is also repeated in Regulation 47 (5) (a-c) and therefore does not give clarity on implementation of the Act. The regulation states that failure to obtain or renew the various work visas or residence permits is an offence that is punishable with three years imprisonment or a fine of five hundred thousand naira or both.*It is strange that the Act creates a pseudo criminal element by including an imprisonment term of up to ten years. It is our opinion that breaches of immigration laws and regulations all over the world would lead to deportation of the foreign national and financial penalties on employers. We find the five to ten year imprisonment term not in line with international best practice. The Act also places responsibility on the employer of a foreign national under employment who is liable to repatriation to inform the Comptroller General before the foreign national departs the country. “It is an offence under this Act for any employer of persons liable to repatriation to discharge any such persons without giving notice to the Comptroller-General of Immigration, or for any such employed person to be re-designated, or change his employment without the approval of the Comptroller-General of Immigration, and upon conviction the employer if not a citizen of Nigeria and the employed person, as the case may be and his dependants shall, if the Minister thinks fit, be deported and the business of the employer may be wound up as prescribed by this Act.[10]”The Regulations[11] further provide that an employer who fails to notify the Comptroller of the re-designation or change of employment of a foreign national has committed an offence. “(1) An employer of a person liable to repatriation who –
“(2) A Nigerian deported for –
The Act further provides for Nigerians deported for immigration or criminal offences and for obtaining multiple passports.
The Act also makes provisions relating to Nigerians in breach of its provisions. The Act provides that the Nigerian passport of a Nigerian who breaches the provisions of the Act may be forfeited and shall not be returned except as the Minister directs[16].
The Regulations[15] repeat the above section and fail to provide clarity as regards implementation of the Act.
“A person who alters or assists another in altering his travel document, or who produces or reproduces, or assists in the production or reproduction of any such travel document without lawful authority, commits an offence and is liable on conviction to imprisonment for a term of five years or to a fine of one million Naira or both.[14]”
The Act expressly provides for alteration of travel documents:
It is also strange that the minister’s discretion is required in the instant case. I am of the opinion that matters that deal with deportation rest with the CGI and the discretion of the Minister is not required. However, we must also take into account that the employer’s business would have to be wound up; which is not within the purview of the Comptroller and therefore the Minister may be notified of the instant case.
The Regulations[13] also point out that, in the event the employer is a foreign national in breach of the provisions of the Regulations above, the employer and his dependents may be deported, if the Minister thinks fit, and the business wound up.
It is important to note that the Regulations do not take into account the corporate nature of an entity. This therefore means that any of the principal members of the company may be regarded as ‘employer’ and therefore may be liable to a term of five years imprisonment or fine of five hundred thousand naira.
(b) causes such a person to be re-designated or change his employment, without the approval of the Comptroller-General commits an offence under section 58 of the Act and is liable on conviction to a term of five years imprisonment or to a fine of one million Naira or both.[12]”
immigration related offences shall not be issued another passport until after two years of his deportation;
any other criminal offence shall not be issued another passport until after five years of his deportation.
“(1) Where a recommendation for deportation is in force in respect of an offender and the offender is neither detained in pursuance of the sentence or order of any court, nor for the time being released on bail by any court having power so to release him, he shall unless the court by which the recommendation is made otherwise directs, be detained until the Minister –
The Act also has an omnibus section that covers offences that do not have penalties.
(3) a person found guilty of fraudulently acquiring or possessing multiple Nigerian passports shall not be issued any other passport until after five years of his being convicted for such offence.[17]”
makes a deportation order in respect of him;
notifies him that no such order is to be made; or
directs that he be released pending further consideration of his case.
(7) A body corporate shall – (a) engage Nigerian employees who shall understudy expatriate employees; and (b) not allow the unauthorized utilization of its quota positions by any other organization; Commits an offence and is liable to a fine of three million Naira for each month the position has been occupied by an expatriate without such understudy and the affected expatriate employees shall be deported.”
The Regulations further recognize infractions committed by relevant corporate entities. Specifically, the Regulations provide that a body corporate that fails to renew the expatriate quota or render its expatriate monthly returns commits an offence and is liable to a fine of Three Million Naira.
The Regulations also provide penalties for failure to employ a Nigerian to understudy the foreign national. It is important to note that one of the conditions for the expatriate quota grant is the employment of at least two (2) local employees to understudy the foreign national who fills the role.
Accordingly, the penalty for failure to employ local employees to understudy foreign nationals is Three Million Naira (circa US $9,000.00) for each month the expatriate quota position has been occupied without understudies.
It is also an offence to allow another company to use the expatriate quota position. This is referred to as ‘quota trafficking’ and the penalty is Three Million Naira (circa US $9,000.00).
In a case of multiple infractions, it is important to note that the Regulations do not state whether the penalty is per infraction. For example, if the body corporate fails to file expatriate monthly returns for a few months and renew the expatriate quota, would the penalty be per infraction?
For clarity, it is important to note that the penalties provided are upon conviction for the offences, which means that the penalties can only be determined by a court of competent jurisdiction. The court of competent jurisdiction is the Federal High Court[1]. The duty of the Nigeria Immigration Service would be to provide the required evidence to prosecute the case.
UNITED KINGDOM
At present, immigration to the UK is divided between migrants from within the EEA/Switzerland and those from outside. Though rules for the former will change in the near future owing to Brexit, EEA/Swiss nationals currently enjoy near unfettered access to the UK to work, study, or reside. This summary discussion will focus on the issues facing the latter group, migrants from outside the EEA/Switzerland.
Criminal Issues
Past criminality may make entry to the UK difficult or impossible depending on the severity and proximity in time to the act or acts. Part 9, Paragraph 320(2) of the Immigration Rules states that the following individuals be refused entry clearance or leave to enter the United Kingdom:
- those currently the subject of a deportation order; or
- those who have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or
- those who have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years, unless a period of 10 years has passed since the end of the sentence; or
- those who have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months, unless a period of 5 years has passed since the end of the sentence.
Generally speaking, offences not recognized in the UK will be treated as an exception to this rule and will not necessarily result in refusal. Additionally, in most cases, previous breaches of the UK’s Immigration Rules as an adult, and materially false representations in relation to immigration applications, whether intentional or not, will also lead to refusal.
Currently, Tier 1 (Entrepreneur) and Tier 1 (Investor) applicants, as well as Tier 2 (General) applicants and their partners who work in the health, education, and social care sectors must provide overseas criminal record certificates for any country they lived as an adult (aged 18 or older) for more than 12 months in the past 10 years.
Host Company Challenges (i.e., Sponsor Challenges)
Sponsors of migrants face a number of challenges with regard to the admissibility of potential overseas hires. First, organizations must successfully apply to be a sponsor, a process that some employers find challenging, time-consuming, and expensive. Second, once certified as a sponsor, organizations must meet specified reporting and recordkeeping duties. Failure to meet these obligations can result in the downgrading, suspension, or revocation of the sponsor license and the removal of sponsored migrant employees as well as hefty financial penalties and in some cases potential criminal liability.
Health and Public Charge Concerns
Two issues raise red flags for admissibility with regard to health: first, payment of the Immigration Health Surcharge, and, second, serious health conditions:
Immigration Health Surcharge: non-EEA/non-Swiss nationals applying to work, study, or join family for more than six months must pay the Immigration Health Surcharge. Students and Tier 5 (Youth Mobility Scheme) migrants must pay £150 per year, while all other applicable visa categories must pay £200 annually. The entire amount is due at the time of application (e.g., a five-year work visa would require the applicant to pay £1,000). Failure to pay this fee will result in a rejected application.
Serious health conditions: individuals with certain severe medical conditions or diseases could be refused entry. Entry clearance officers must refer the following individuals to medical examinations:
- individuals seeking to come to the UK for more than six months from areas with a high rate of tuberculosis, and
- persons who are clearly unwell.
After examination, if the medical inspector issues a certificate stating that they are a significant risk to public health, they must be refused.
Entry clearance officers may refuse individuals suffering from:
- pulmonary tuberculosis;
- venereal disease;
- leprosy; and
- trachoma.
Public Charge (i.e., Maintenance)
Migrants to the UK are required to demonstrate that they will be able to support themselves for the duration of their stay. To do so, applicants must evidence sufficient funds for main applicants and their families (e.g., £3,310 for Tier 1 (Entrepreneur), £1,890 for Tier 1 (Graduate Entrepreneur) and Tier 5 (Youth Mobility), and £945 for Tier 2 migrants. Tier 1 (Investor) migrants need not prove maintenance funds. Migrants in some sponsored categories (Tiers 2 and 5) may rely on their A-rated sponsors to guarantee maintenance for the first month.[32]
Individual Issues Inclusive of Age, LGBTQ, Gender, Nationality
Sexual Orientation and gender are not factors in entry clearance decisions to the UK. Age may be an issue, but only in the context of adults versus children.
Nationality plays a large role in how challenging obtaining a visa to the UK can be. As noted above, for the time being EEA/Swiss nationals enjoy freedom of movement and are virtually unrestricted in their ability to enter the UK to work, study, or reside, while nationals from outside the EEA/Switzerland must apply and meet the Points-Based
Conclusion
The summary above shows significant differences among countries in the treatment of key inadmissibility issues. These laws are also subject to rapid change. To effectively manage global immigration, it is critical to consult knowledgeable local counsel in the relevant jurisdiction.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the June 08, 2018 edition of the The Legal Intelligencer© 2018 ALM Media Properties, LLC. All rights reserved.
Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
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