LEGAL ALERT 17 May 2023
With effect from 1 May 2023, Kazakhstan imposed a ban on employment of certain types of foreigners.
On 19 April 2023, Article
26.1(6) of the Kazakhstan Labour Code of 23 November 2015 was amended by
Kazakhstan Law On the Amendment of
Certain Legislative Acts of the Republic of Kazakhstan Concerning the
Administrative Reform in the Republic of Kazakhstan
No. 223-VII to read as follows:
“Employers are prohibited from entering into employment agreements with:
6) the foreigners and stateless persons who:
· are temporarily staying in the Republic of Kazakhstan;
· have not presented a permit to enter and stay in the country for family reunification purposes that would prove their marriage with a Kazakshtan citizen legally recognized by the Republic of Kazakhstan; and
· do not have a mandatory medical insurance agreement that would cover primary and specialized hospital emergency care on the terms and conditions prescribed by the applicable Kazakhstan laws”.
Sayat Zholshy & Partners believes that the new version of the provision is not entirely appropriate and, therefore, makes space for ambiguity. In practice, it may have adverse effects because of its various interpretations and applications by different subjects.
In particular, the provision triggers questions as to the scope of its application:
· Does the new provision apply to all the foreigners who are temporarily staying in the Republic of Kazakhstan as it follows from the literal construction thereof?
· Does the new provision apply only to the foreigners who arrive to Kazakhstan with the sole purpose of their family reunification?
Please note that the amendment does not apply to the employment agreements executed before 1 May 2023.
It should be appreciated that, since the innovation applies only to the foreigners and stateless persons who are temporarily staying in the Republic of Kazakhstan, it does not apply to the foreigners and stateless persons who are not in the Republic of Kazakhstan on the date of their employment agreement execution.
Therefore, Sayat Zholshy & Partners intends to apply to the Kazakhstan Ministry of Labour and Social Protection for official commentary and clarification. We will keep you informed of further developments.
Nevertheless, before we receive official commentary and clarification from the Kazakhstan Ministry of Labour and Social Protection, we would strongly recommend relying upon the literal construction of the Article and requesting from all foreigners temporarily staying in the Republic of Kazakhstan all the documents specified in Article 26.1(6) of the Kazakhstan Labour Code.
Sayat Zholshy & Partners