Problems persist with Georgian immigration policy
Since the new Law on Legal Status of Aliens and Stateless Persons came into effect on 1 September 2014, it has been frequently criticized for having created unreasonable barriers to foreigners wishing to visit or move to Georgia for work or study As a result of this controversy, the law has been amended twice since its adoption. A third draft amendment has now been registered in the Parliament. Furthermore, Prime Minister Irakli Garibashvili has announced more fundamental changes.
Back in October 2014, we wrote about significant concerns caused by the new law and later approached the Government with specific recommendations. These suggestions were reflected in our legislative proposals. which the Parliament has not considered to date. The government has taken some of our recommendations into account, such as allowing for the visa to be applied for on Georgia’s territory and online. Problems persist, including the unusually large number of unjustified refusals of residence permits to foreign citizens.
Obtaining a residence permit has become a huge concern for foreigners especially after the September 1 amendments. The new law reduced visa validity from 360 to 90 days. Foreigners arriving in Georgia for study, work, business or family reunification, have to obtain residence permits prior to the expiration of the 90 day period. LEPL Public Service Development Agency is authorized to issue a residence permit.
1. Problematic Regulations and their Unlawful Application
Our study has demonstrated that when refusing to grant a residence permit, the Public Services Development Agency is mostly referring to Sub-Paragraphs "a" and "c" of Paragraph 1 of Article 18 of the Law "on Legal Status of Aliens and Stateless Persons", pursuant to which a person is a threat to the country's security. Such a conclusion is made based on recommendation by the Counterintelligence Department of the Ministry of Interior.
1.1. Refusal by referring to threat to the country's security (meaning of Sub-Paragraphs "a" and "c" of Article 18)
Provided below is a brief overview of cases which used a threat to security as grounds for refusal of a residence permit to foreign citizens.
Sub-Paragraph "a" - Conclusion by an authorized agency exists on inexpediency of his/her living in Georgia for securing the state and/or public security interests;
Sub-Paragraph "c" - S/he pursues activities that threaten Georgia's state security and/or public order.
Paragraph 2 of the same article of the Law provides concrete implications of Sub-Paragraphs "a" and "c", including the following:
A person's presence in Georgia endangers Georgia's relations with other states and/or international organizations;
Reports/information exist that refer with high probability to a person's links with:
Armed forces of a country/organization with a hostile attitude towards Georgia's defense and security;
Intelligence services of another state;
Terrorist and/or extremist organizations;
Organizations dealing with drugs, arms, illicit turnover of weapons of mass destruction or its components, trading in humans (trafficking) and/or other crimes (including transnational criminal organizations).
It is obvious that Sub-Paragraphs "a" and "c" of Article 18 of the Law refer to grave, international offences, spying against the country, trafficking in drugs, etc.
Prohibition of entry or presence of foreigners in a country based on these grounds is a normal phenomenon in immigration legislation of developed countries, and it is necessary for state security. However, residence permits ought only rarely to be refused on these grounds; and these grounds should be used with particular caution clear justification and narrow discretion. In Georgia, conversely, these are used commonly.. We tried to obtain the exact number of state refusals to grant residence permits on these grounds, but the Ministry of Justice did not provide this information.
Remarkably, an authorized agency of the Ministry of Interior identifies these grounds in respect of a foreigner, sent to the Public Services Development Agency as a recommendation. The Agency does not have a statutory obligation to take such recommendation into account.
1.2. Authorized agency assessing the risks to the country's security
The Counterintelligence Department of the Ministry of Interior is such an authorized agency in Georgia, which is approached by the Public Services Development Agency for information on a person prior to deciding to grant residence permit to any foreigner. If the Counterintelligence Department concludes that a person threatens state security, practice has shown that representatives of the Public Services Development Agency automatically determine that Sub-Paragraphs "a" and "c" of Article 18 of the Law are applicable. They refuse residence to the applicant. This is despite the fact that the Law does not obligate them to take such conclusions in consideration in all cases. Equally importantly, the reasoning behind any such conclusion is classified. Thus the staff of the Public Services Development Agency cannot know on what basis the findings were made. This limits their ability to make decisions based on a full evaluation. Therefore, in fact any such conclusions is considered an instruction.
In addition, due to the classified nature of the reasoning behind any conclusions made by Counterintelligence, individuals' mechanisms to redress their rights in court are also limited. When challenging a refusal, the courts often are not interested in the reasoning supporting a conclusion, but are guided by Article 6 of the Law of Georgia on Counterintelligence Activities, pursuant to which the counterintelligence activities are classified. Documents, materials and other data on such activities are qualified as a state secret and cannot be used for the purposes of protection of rights.
2. Concrete Examples
This section describes in more detail the cases of foreigners who were refused residence permits and who have approached us or our partner organizations.
2.1. Refusal to grant residence permit for family reunification purposes
Case of Volkan Baiburti's Children
Volkan Baiburti is a citizen of Georgia, his spouse Irine Baiburti is ethnically Georgian, and a citizen of Turkey. She has permanent residency in Georgia. They have three minor children who are Turkish citizens. They have approached the Public Services Development Agency, which has rejected children's request for residency, stating in the decision that the under-aged children pose a threat to state security (Article 18, "a" and "c").
Case of Vladimir Levashev
The mother of Russian citizen Vladimir Levashev, Galina Levasheva, is a citizen of Georgia by birth. She lives in Chakvi, Kobuleti Municipality. She has a clear disability status (under old terminology, I group invalid), for which she receives a state benefit. Owing to deterioration in her health, she could no longer live alone. Her son Vladimir Levashev decided to return to Georgia. He has received the D4 category visa, which is issued to those arriving in the country for family reunification purposes, and which implies by itself that a foreigner intends to stay in the country for a long period of time. The Public Services Development Agency has refused to issue a resident permit to Levashev, giving the standard reason - threat to state security. Transparency International - Georgia is providing legal aid to Vladimir Levashev. The decision by the Public Services Development Agency is being challenged in court.
A similar problem has been encountered by the Nigerian citizen Valery Abaiboh Ephuchiek, whose spouse and child are Georgian citizens. After being granted the D4 category visa, the state found him to be a threat to the country's security and refused to grant him a residence permit on the grounds of "a" and "c" of Article 18.
The state's refusal to issue residence permits in these cases is totally unclear, especially when Article 3 of the new Law declares family unity as one of the principles of the Law.
2.2. Refusal to grant residence permit for business or employment activities
Iraqi entrepreneurs, who are engaged in tourist businesses in Georgia, have invested in tour operator companies, own real estate and have multi-thousand bank accounts in Georgia, were also regarded as a threat to the state security. Provided below are considerable facts about several individuals who had contacted us personally:
Latih Fakir Mohamed Alarkokli – owner of tourism company Blue Sky Ltd; in addition, he owns tour operators in Armenia and Malaysia and other real estate in Georgia; USD 10000-20000 in the bank;
Manaf Noori Faizal Faizali – trading-transportation company Al Rawasi Ltd; USD50000-60000 in the bank;
Abdulhadi Ahmed Abed Dilami – tourism company Al Hadi Ltd; other real estate; USD 10000-20000 in the bank;
Samir Abdulah Suhail al Suhaili – trading-transportation company Barash Honey Ltd; USD 60000-70000 in the bank;
Mohamed Nasar Salmani – Babelon Company Ltd; USD 10000-2000 in the bank, is married to a Georgian;
Narendra Singh Kandhari - citizen of India, individual entrepreneur, VAT-payer; he provides goods to constructions in Batumi; has been in the country for a year now; was recommended by two Georgian contractor companies.
All of the listed here were refused residency based on an assessment that they are a threat to state security. Foreign nationals pursuing employment activities in Georgia were also refused residency on these grounds, including: a Nigerian citizen Ebenezer Olugbenga Ojo, who has lived in Georgia for 7 years, has a D1 category employment visa and works in "Anagi" LLC; as well as a citizen of Bangladesh, Moniruzzaman Muhammad, who has the Georgian 360-day ordinary visa and is employed by a large international company Integration Point.
To mitigate problems in this respect, we find the following recommendations must be taken into account:
Foreign nationals' potential risks to the state security must be checked at the stage of issuing visas to them, because having a visa of the appropriate category is a prerequisite for receiving a residence permit. This would avoid double-checking of persons for essentially the same subject matter;
The Counterintelligence Department must exercise its vested authority in this process in proportion to risks, by observing the proportionality principle and providing a higher degree of justification. Currently it is totally vague and unclear what the Counterintelligence Department is basing its conclusions on. For instance, as one of the above examples illustrates, the Department may find minor children as threat to the country and prohibit them from living in the country. Such decisions make us think that responsible persons exercise gross arbitrariness and abuse of powers while drawing up the Counterintelligence Department's conclusions.