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Employer may face penalty if employee overstays after visa is cancelled

Ashish Mehta
Filed on February 9, 2020 | Last updated on February 9, 2020 at 04.22 pm
Employer, employee, Visa, overstay, visa rule

(alamy.com/ae)

An employee whose residence visa has been revoked or has expired must leave the UAE.

An employee resigns from his employment and thereafter, receives his residence visa cancellation form wherein his employer stipulates that he must leave the country or change the status of his visa within a specified period. However, if the said employee does not leave the UAE or does not change his visa status and overstays in the UAE, will his sponsor (employer) have a right to lodge an escape (absconding) report against him?

Answer
 
At the outset, it may be noted that the regulations pertaining to the immigration and residence of foreigners residing in the UAE are stipulated under Federal Law No. (6) for 1973 concerning immigration and residence as amended by virtue of Law No. (7) of 1985, Law No. (13) of 1996 and Federal Decree Law No. (17) of 2017 (the 'Federal Residency Law').

In furtherance, it is presumed that the employer (the sponsor) and the employee are subject to the provisions of Ministerial Resolution No. (52) of 1989 on the rules and procedures to be adopted at the work permits sections with respect to the recruitment of non-national employees for the employment in UAE (the 'Ministerial Resolution No. 52 of 1989') and Ministerial Resolution No. (721) of 2006 on Escape Reports Procedures (the 'Ministerial Resolution No. 721 of 2006').

Pursuant to your query, note that an employee whose resident visa has been revoked or has expired must leave the UAE. This is in accordance with Article 19 of the Federal Residency Law, which states:

"Foreigners who have obtained residence licence shall be subject to the provisions of Article (11) herein. They must leave the country upon the revocation of their residence permit or the expiration of its term."

It may be further noted that that an employer is under an obligation to repatriate an employee from where the employee was recruited at the end of the employee's employment contract. This is in accordance with Article 6 (d) of Ministerial Resolution No. 52 of 1989, which states:

"An undertaking from the employer to the effect that he shall send back the recruited employee to the country where he was recruited upon the completion of this job and upon the cancellation of his sponsorship and the handing back of the employee card provided same shall be valid."  

Therefore, in the event the employee's employment contract is terminated, the employer is under an obligation to ensure that the terminated employee is repatriated to his home country. However, if the employee refuses to be repatriated to his home country by absconding and the employer fails to lodge a complaint against the employee for absconding, the employer may be penalised if the employee is found overstaying in the UAE despite the termination of his employment contract and the cancellation of his residence visa. This is in accordance with Article 34 (1) of the Federal Residency Law, which states:

"A fine of Dh50,000 shall be imposed on anyone who has used or accommodated a foreigner in violation of the provisions of this law. The penalty shall be imprisonment and a fine of Dh50,000 in case of return to the same act."

Therefore, in pursuance of the aforementioned provisions, the employer is liable to report an absconding employee by lodging a complaint against the employee. Further, the lodging of the complaint may result in an escape report being issued against the employee. This is in accordance with Article 1 of Ministerial Resolution No. 721 of 2006, which states:

"An escape report is applied on the case of the employee who has stopped working for more than seven consecutive days if the employer pledged that he does not know his whereabouts or has a legitimate reason for his absence in accordance with the provisions of this Ministerial Resolution."

It may be noted that an employer has the right to lodge an escape report against a terminated employee who refuses to be repatriated to his home country. The employer may lodge a complaint with the Ministry of Human Resources and Emiritsation (Mohre). Thereafter, based on the instructions issued by the Mohre, the employer may submit the escape report issued by the Mohre to the General Directorate of Residency and Foreigners Affairs in the emirate wherein the employee's residence visa was issued.

Know the law

An escape report is applied on the case of the employee who has stopped working for more than seven consecutive days if the employer pledged that he does not know his whereabouts or has a legitimate reason for his absence

Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom and India. Full details of his firm on: www.amalawyers.com. Readers may e-mail their questions to: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.


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