Commentary to article 519. Attraction of foreign labor and labor immigrants in violation of the legislation of the Republic of Kazakhstan  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. The recruitment of foreign labor by an employer without the permission of a local executive body or the use of labor by foreigners and stateless persons who do not have certificates of qualifications for self-employment issued by the authorized body on population migration, or permits for labor immigrants issued by internal affairs bodies., -

     They impose a fine on individuals in the amount of thirty, on officials in the amount of fifty, on small businesses or non-profit organizations in the amount of one hundred, on medium-sized businesses in the amount of two hundred, on large businesses in the amount of seven hundred monthly calculation indices.

     2. Recruitment by an employer of a foreign employee to a position (profession or specialty) that does not correspond to the position (profession or specialty) specified in the permit of the local executive body for the recruitment of foreign labor, -

     entails a fine for individuals in the amount of thirty, for officials - in the amount of fifty, for small businesses or non-profit organizations - in the amount of one hundred, for medium-sized businesses - in the amount of two hundred, for large businesses - in the amount of seven hundred monthly calculation indices.

     3. The actions provided for in the first and second parts of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -

     They impose a fine on individuals in the amount of fifty, on officials in the amount of one hundred, on small businesses or non-profit organizations in the amount of two hundred, on medium-sized businesses in the amount of three hundred, on large businesses in the amount of one thousand monthly calculation indices.

     4. Excluded in accordance with the Law of the Republic of Kazakhstan dated December 29, 14, No. 272.

     5. The involvement of an individual employer in the performance of work (provision of services) in the household of labor immigrants without an appropriate permit issued by the internal affairs bodies, or the conclusion of employment contracts for the performance of work (provision of services) in the household by one individual employer simultaneously with more than five labor immigrants -

     entails a fine in the amount of thirty monthly calculation indices.

     6. The actions provided for in part five of this article, committed repeatedly within a year after the imposition of an administrative penalty, -

     they entail a fine in the amount of fifty monthly calculation indices.

     In accordance with Article 12 of the Constitution of the Republic of Kazakhstan: "Foreigners and stateless persons enjoy the rights and freedoms in the Republic, as well as bear the duties established for citizens, unless otherwise provided by the Constitution, laws and international treaties".  

     The legislation of the Republic of Kazakhstan takes into account the recommendations of the International Convention for the Protection of All Rights of Migrant Workers and Members of Their Families, approved by UN General Assembly Resolution 45/178 of December 18, 1990.

     The Law of the Republic of Kazakhstan dated June 27, 2011 No. 442 ratified the Agreement on the Legal Status of Migrant Workers and Members of Their Families, signed in St. Petersburg on November 19, 2010.  

     The object of the offense is public relations in the field of ensuring the order of stay of labor migrants in the territory of the Republic of Kazakhstan.

     Article 6 of the Law of the Republic of Kazakhstan "On the Legal Status of Foreigners" states that "Foreigners may work in the Republic of Kazakhstan on the basis and in accordance with the procedure established by the legislation and international treaties of the Republic of Kazakhstan."

     Foreigners permanently residing in the Republic of Kazakhstan have the same rights and duties in labor relations as citizens of the Republic of Kazakhstan. Foreigners temporarily staying in the Republic of Kazakhstan may be private business entities. At the same time, it is not allowed to carry out entrepreneurial activity without forming a legal entity.

     Foreign employees may be involved in government agencies of the Republic of Kazakhstan in accordance with paragraph 3 of Article 64 of the Law of the Republic of Kazakhstan dated November 23, 2015 "On Civil Service in the Republic of Kazakhstan". The rules for attracting foreign workers to government agencies of the Republic of Kazakhstan were approved by Resolution No. 1198 of the Government of the Republic of Kazakhstan dated December 31, 2015.

     The objective side of part 1 of the article under consideration is expressed by illegal actions in the form of:

     1) recruitment of foreign labor by the employer without the permission of the local executive body;

     2) employment of foreigners and stateless persons who do not have certificates of qualifications for self-employment issued by the authorized body on migration issues;

     3) the use of labor by foreigners and stateless persons who do not have permits for labor immigrants issued by law enforcement agencies.

     In accordance with Article 37 of the Law of the Republic of Kazakhstan dated July 22, 2011 No. 477-IV "On Population Migration", the Government of Kazakhstan annually approves a quota for issuance to foreign citizens, taking into account the labor market situation. The recruitment of foreign labor by an employer is carried out on the basis of a permit issued by local executive bodies within the quota. Paragraph 3 of article 35 of this law states that "Foreign workers arriving for self-employment or employed by employers, including as part of an internal corporate transfer, are required to have the education, qualifications and experience necessary to perform the upcoming work."

     Permits for labor immigrants are issued by internal affairs bodies in accordance with the requirements of the Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated February 8, 2014 No. 76 "On approval of the Rules for issuing, extending and Revoking permits for labor immigrants, as well as registration, formation and maintenance of data and photo records of labor immigrants." A permit for a labor immigrant containing a unique bar code is printed in two copies using the Berkut Electronic Information System, while the permit number is the system account number in the Berkut electronic Information System when crossing the State Border. The first copy of the permit is issued to a labor immigrant after fingerprinting. The second copy of the permit is attached to the materials. Simultaneously with the issuance of a permit to a labor immigrant, a new migration card is issued in the "purpose of stay" column, which indicates "labor immigrant". The registration period is drawn up for the duration of the work permit for the immigrant.

     Based on paragraph 4 of Article 26 of the Labor Code of the Republic of Kazakhstan, it is not allowed to conclude an employment contract with foreigners and stateless persons temporarily residing in the territory of the Republic of Kazakhstan.:

     1) before obtaining the permission of the local executive body to attract foreign labor;

     2) before receiving a certificate of compliance with qualifications for self-employment, issued in accordance with the procedure determined by the Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated June 13, 2016 No. 503.

     3) before obtaining a permit for a labor immigrant, issued by the internal affairs bodies in accordance with the procedure established by the Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated February 8, 2014 No. 76.

     The objective side of part 2 of the commented article is expressed by illegal actions in the form of attracting a foreign employee by the employer to a position (profession or specialty) that does not correspond to the position (profession or specialty) specified in the permit of the local executive body for attracting foreign labor.

     The migration police of the internal affairs bodies is the local executive body that issues permits to migrant workers. According to Article 6 of the Law of the Republic of Kazakhstan dated April 23, 2014 No. 199 "On Internal Affairs Bodies of the Republic of Kazakhstan", the competence of the Department of Internal Affairs includes measures:

     1) to carry out fingerprinting, photographing of labor immigrants and to form their records (paragraph 22);  

     2) issue visas for foreigners and stateless persons to leave the Republic of Kazakhstan, permits for temporary stay and permanent residence in the Republic of Kazakhstan (paragraph 23);

     Article 32 of the Labor Code provides for a list of documents required for the conclusion of an employment contract. In order to conclude an employment contract and confirm the profession and specialty, a foreign employee should provide:

     1) a document on education, qualifications, availability of special knowledge or professional training when concluding an employment contract for a job requiring relevant knowledge, skills (paragraph 3);

     2) a document confirming employment (for persons with work experience) (paragraph 4).

     Part 3 of the article in question provides for the qualifying features of the first and second parts of the article, committed repeatedly within a year after the imposition of an administrative penalty.  

     Part 4 of the article under study was deleted in accordance with the Law of the Republic of Kazakhstan dated December 29, 2014 No. 272 "On Amendments and Additions to the Code of the Republic of Kazakhstan on Administrative Offenses".

     The objective side of part 5 of the commented article is expressed by illegal actions in the form of:

     1) the involvement of an individual employer in the performance of work (provision of services) in the household of migrant workers without an appropriate permit issued by the internal affairs bodies,

2) the conclusion of employment contracts for the performance of work (provision of services) in the household by one individual employer simultaneously with more than five labor immigrants.

     Article 26 of the Labor Code of the Republic of Kazakhstan establishes Prohibitions and restrictions on the conclusion of an employment contract and employment. Among them, it is not allowed to conclude an employment contract for the performance of work (provision of services) in a household by one individual employer at the same time with more than five labor immigrants (clause 7).  

     At the subordinate level, the Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated February 8, 2014 No. 76 "On approval of the Rules for issuing, Extending and Revoking permits for labor immigrants, as well as registration, formation and maintenance of data and photo records of labor immigrants" provides for a mechanism for implementing the legislative provision:

     1) permission to a labor immigrant is the basis for an immigrant to conclude an employment contract for performing work as domestic workers (rendering services) for employers who are individuals in the household (paragraph 11);

     2) it is not allowed to conclude employment contracts for the performance of work (provision of services) in a household by one individual employer at the same time with more than five labor immigrants (clause 12).

     3) a permit to a labor immigrant grants the right to a labor immigrant to perform work as domestic workers (provide services) in the household of an individual employer in the territory of the administrative-territorial unit in which it was issued (paragraph 13).

     The objective side of Part 6 of the article provides for the qualifying features of the fifth part of the article, committed repeatedly within a year after the imposition of an administrative penalty.

     According to parts 1, 2 and 3 of this article, the subjects of the offense may be:

     1) individuals (art. 28 of the Administrative Code);

     2) officials (art. 30 of the Administrative Code);

     3) legal entities, namely small, medium, large businesses or non-profit organizations (art. 33 of the Administrative Code).

     The subjects of the offense provided for in parts 5 and 6 are explicitly indicated in the disposition of part 5 of the commented article. The offender is the employer, a sane individual who has reached the age of sixteen at the time of the termination or suppression of an administrative offense.

     The subjective side of offenses provided for in all parts of this article is guilt in the form of intent or negligence.

     On the basis of part 1 of Article 685 of the Administrative Code, cases of offenses provided for in parts one, three, five and six of this article are considered by the internal affairs bodies, namely:

     1) according to parts 1, 3, 5 and 6 - chairmen of committees and heads of departments of the Ministry of Internal Affairs, heads of territorial internal affairs bodies, administrative divisions, migration police, local police service of the region, the city of republican significance, the capital, their deputies (paragraph 1, part 2, art. 685 of the Administrative Code)

     2) according to parts 1, 3, 5 and 6 - heads of departments, police departments, administrative divisions, migration police, local police service of the district (city, district in the city) and their deputies (paragraph 2, part 2, art. 685 of the Administrative Code);

     3) according to parts 1, 3, 5 and 6 - heads of line departments, departments, police stations of internal affairs bodies and their deputies (paragraph 3, part 2, art. 685 of the Administrative Code)

     4) in all parts - state labor inspectors of the state labor inspection bodies (parts 1 and 2 of art. 693 of the Administrative Code);

     5) in all parts – the national security agencies of the Republic of Kazakhstan (art. 726 of the Administrative Code).

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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