Commentary on Article 395. Repeated Violation of the Rules for Engaging and Employing Foreign Labour in the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

1. Repeated employment by an employer of foreigners and stateless persons staying in the territory of the Republic of Kazakhstan without the appropriate authorization of the authorized body, as well as repeated violation by an employer of the rules for employing foreign labour in the Republic of Kazakhstan —

shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to two hundred hours, or arrest for a period of up to fifty days.

The public danger of the criminal misdemeanour provided for in Article 395 of the Criminal Code lies in the fact that it encroaches upon the established rules for engaging and employing foreign labour in Kazakhstan, as a result of which taxes are not paid into the state budget, the living conditions of foreign workers, occupational safety requirements and social protection rules are not observed, thereby causing harm to the interests of individuals, society and the state.

The object of the criminal misdemeanour under consideration is the public relations establishing the management procedure in the sphere of regulating the activities of individuals in the area of engaging and employing foreign labour in the Republic of Kazakhstan.

The objective element of the criminal misdemeanour provided for in Article 395 of the Criminal Code consists in the repeated employment by an employer of foreigners and stateless persons staying in the territory of the Republic of Kazakhstan without the appropriate authorization of the authorized body, as well as in the repeated violation by an employer of the rules for employing foreign labour in the Republic of Kazakhstan.

The procedure for engaging foreign labour is regulated by the Laws of the Republic of Kazakhstan dated 22 July 2011 “On Migration of the Population” and dated 6 April 2016 “On Employment of the Population”; the Resolution of the Government of the Republic of Kazakhstan dated 15 December 2016 “On Approval of the Rules for Establishing the Quota for Engaging Foreign Labour in the Republic of Kazakhstan and Its Distribution Among the Regions of the Republic of Kazakhstan, Determining Persons for Whose Employment Activities a Permit from Local Executive Bodies to Engage Foreign Labour Is Not Required, and Declaring Certain Decisions of the Government of the Republic of Kazakhstan Invalid”; and the Order of the Acting Minister of Healthcare and Social Development of the Republic of Kazakhstan dated 27 June 2016 “On Approval of the Rules and Conditions for Issuing and (or) Extending Permits to Employers to Engage Foreign Labour, as well as for Implementing Intra-Corporate Transfers”.

Employment recruitment is a series of actions undertaken by an employer to attract candidates possessing the qualities necessary to achieve the objectives set by the employer.

Pursuant to subparagraph 39) of paragraph 1 of Article 1 of the Labour Code of the Republic of Kazakhstan, an employer is an individual or legal entity with whom an employee is in an employment relationship.

A similar definition is established in the Rules and Conditions for Issuing and (or) Extending Permits to Employers to Engage Foreign Labour, as well as for Implementing Intra-Corporate Transfers, approved by the Order of the Acting Minister of Healthcare and Social Development of the Republic of Kazakhstan.

In accordance with the Law of the Republic of Kazakhstan dated 19 June 1995 “On the Legal Status of Foreigners”, foreigners in the Republic of Kazakhstan are persons who are not citizens of the Republic of Kazakhstan and have evidence of their belonging to the citizenship of another state.

Stateless persons are persons who are not citizens of the Republic of Kazakhstan and have no evidence of their belonging to the citizenship of another state.

Pursuant to the aforementioned Law, foreigners may engage in employment activities in the Republic of Kazakhstan on the grounds and in accordance with the procedure established by legislation and international treaties of the Republic of Kazakhstan. In order to ensure the exercise of the constitutional right of citizens of the Republic of Kazakhstan to freedom of labour, legislative acts may establish restrictions on the employment activities of foreigners in the Republic of Kazakhstan.

Foreigners may not be appointed to certain positions or engage in certain types of employment activities if, in accordance with the legislation of the Republic of Kazakhstan, appointment to such positions or engagement in such activities is connected with citizenship of the Republic of Kazakhstan.

Foreigners permanently residing in the Republic of Kazakhstan have the same rights and bear the same obligations in employment relationships as citizens of the Republic of Kazakhstan.

In accordance with subparagraph 23) of Article 1 of the Law of the Republic of Kazakhstan “On Migration of the Population”, a permit to engage foreign labour is a document of the prescribed form issued by a local executive body to an employer for engaging foreign labour in the Republic of Kazakhstan.

Article 37 of the aforementioned Law establishes the procedure for issuing permits to employers to engage foreign labour, certificates to foreign employees confirming their qualifications for independent employment, and their engagement within the framework of intra-corporate transfers.

An employer engages foreign labour on the basis of a permit issued by local executive bodies within the quota established by the authorized body responsible for migration of the population.

For the issuance or extension of a permit to engage foreign labour, issued by a local executive body within its territory and (or) other administrative-territorial units, employers shall pay a fee in accordance with the procedure established by the tax legislation of the Republic of Kazakhstan.

The procedure for establishing the quota for engaging foreign labour in the Republic of Kazakhstan and distributing it among the regions, cities of republican significance and the capital shall be determined by the Government of the Republic of Kazakhstan.

Foreign employees transferred within the framework of intra-corporate transfers, as well as those arriving for independent employment, shall carry out temporary employment activities in accordance with the purposes of their stay and shall be obliged to leave the country upon expiration of the period specified in the employment contract, which shall not exceed three years.

The procedure and conditions for issuing or extending permits to employers to engage foreign labour, as well as for implementing intra-corporate transfers, shall be approved by the authorized body responsible for migration of the population.

Foreign employees may arrive for independent employment in professions in demand in priority sectors of the economy (types of economic activity), provided that they obtain a certificate confirming their qualifications, issued by a local executive body, for a period not exceeding three months, with the right to extend it for the term of the employment contract, but not exceeding three years.

The procedure for issuing certificates to foreign employees confirming their qualifications for independent employment, the list of priority sectors of the economy (types of economic activity), and the professions in demand in those sectors for the independent employment of foreign employees shall be determined by the authorized body responsible for migration of the population, in coordination with the authorized state bodies exercising management of the relevant sphere of public administration.

According to subparagraph 22) of Article 1 of the aforementioned Law, the quota for engaging foreign labour is the maximum permissible number of foreign workers that an employer is authorized to engage in order to carry out employment activities in the territory of the Republic of Kazakhstan.

It should be noted that, in accordance with Article 36 of the Law of the Republic of Kazakhstan “On Migration of the Population”, entry visas for foreign employees are issued by the Ministry of Foreign Affairs of the Republic of Kazakhstan and the foreign missions of the Republic of Kazakhstan, in coordination with the national security bodies, on the basis of and for the period of validity of the permit issued to a foreign employee for employment or to an employer for engaging foreign labour, including within the framework of intra-corporate transfers.

Temporary residence permits for foreign employees arriving from states that have concluded agreements with the Republic of Kazakhstan on a visa-free entry and stay procedure are issued by the internal affairs bodies in accordance with international treaties ratified by the Republic of Kazakhstan.

Entry visas and temporary residence permits for foreign employees shall be extended by the internal affairs bodies, in coordination with the national security bodies, for a period of one year, provided that the foreign employee has a permit for employment or the employer has a permit to engage foreign labour, including within the framework of an intra-corporate transfer, for the upcoming year.

Entry visas for foreign employees of state bodies are issued by the Ministry of Foreign Affairs of the Republic of Kazakhstan and the foreign missions of the Republic of Kazakhstan on the basis of and for the period of validity of the employment contract with the relevant state body.

According to paragraph 24 of the Rules and Conditions for Issuing and (or) Extending Permits to Employers to Engage Foreign Labour, as well as for Implementing Intra-Corporate Transfers, approved by the Order of the Acting Minister of Healthcare and Social Development of the Republic of Kazakhstan dated 27 June 2016, a permit to engage foreign labour shall not be issued in the following cases: exceeding the allocated quota; failure by the employer to comply with the following conditions: citizens of the Republic of Kazakhstan must constitute at least 70% of the total number of employees included in the payroll belonging to the first and second categories, and citizens of the Republic of Kazakhstan must constitute at least 90% of the total number of employees included in the payroll belonging to the third and fourth categories; failure to fulfil obligations to replace foreign labour under the fourth category; establishment of the fact that the employer has engaged foreign employees without a permit, as well as engagement of a foreign employee in a profession or specialty that does not correspond to the profession or specialty specified in the permit; failure of the educational level (professional training) and practical work experience (length of service) of foreign labour to meet the qualification requirements imposed on workers' professions and the positions of managers, specialists and employees in accordance with professional standards, the Unified Tariff and Qualification Handbook of Jobs and Professions of Workers, the Qualification Handbook of Managers, Specialists and Other Employees, and the standard qualification characteristics of positions of managers, specialists and other employees of organizations.

The first category of employees includes managers and their deputies; the second category includes heads of structural divisions who meet the qualification requirements established by professional standards, the Qualification Handbook of Managers, Specialists and Other Employees, and the standard qualification characteristics of positions of managers, specialists and other employees of organizations; the third category includes specialists who meet the qualification requirements established by professional standards, the Qualification Handbook of Managers, Specialists and Other Employees, and the standard qualification characteristics of positions of managers, specialists and other employees of organizations; the fourth category includes skilled workers who meet the qualification requirements established by professional standards, the Unified Tariff and Qualification Handbook of Jobs and Professions of Workers, and the tariff and qualification characteristics of workers' professions.

A permit to engage foreign labour shall cease to be valid in the following cases: expiration of the period for which it was issued; revocation of the permit; termination of the activities of an individual employer or liquidation of a legal entity employer; voluntary return of the permit by the employer to the local executive body; failure to submit copies of documents confirming payment of the fee for the issuance and extension of the permit; re-registration of the permit for another foreign employee.

Violation of the rules for employing foreign labour in the Republic of Kazakhstan shall mean non-compliance with or failure to fulfil the requirements of the aforementioned regulatory legal acts governing the procedure for engaging and employing foreign labour.

A condition for criminal liability for committing the aforementioned offences is their repetition, i.e. the commission of these acts two or more times.

By its structure, the composition of the criminal misdemeanour is formal. The criminal misdemeanour shall be deemed completed when repeated employment has taken place or when the employer has repeatedly violated the rules for engaging and employing foreign labour in the Republic of Kazakhstan.

The subjective element is characterized by an intentional form of guilt. The guilty person is aware that they are repeatedly violating the rules for engaging and employing foreign labour in the Republic of Kazakhstan and desires to do so.

The subject may be citizens of the Republic of Kazakhstan, foreigners or stateless persons who have reached the age of 16.

The act provided for in Article 395 of the Criminal Code is classified as a criminal misdemeanour.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reforming the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.*

Constitution Law Code Regulatory Act Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal Consultation Civil Criminal Administrative cases and disputes Protection Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Programme Charter Charter Article Commentary Resolution Regulation Protocol Draft Programme Messages