Peculiarities of sending foreign citizens on business trips

Article is prepared by Dmitry Ukolov, a lawyer of Confidence Group, 29.03.2016

Regional distribution of businesses involves the constant movement of their staff in the territory of Russia. The employer sending the employee, a Russian citizen, on a business trip in Russia, has much less complex problems to solve, rather than the employer sending the employee, a foreign citizen, on a business trip in another territorial entity of Russia.

The Federal Law 115-FZ as of 25.07.2002 "On the Legal Status of Foreign Citizens in Russia" (hereinafter - the Law) provides, that one has a right to work only in the Russian territorial entity that is entitled by issued work permit. At the same time in case of the business trip to the nearby territorial entity of Russia, the status of a foreign citizen worker, of course, remains. In such a case, what do the employer has to do? How to avoid legislation violations when sending a foreign worker on a business trip? Are there any exceptions for foreign workers while traveling across the country? And what are the consequences of the violation of this issue? Let's discover step by step.

Unfortunately, the Law does not prescribe the procedure of sending foreign workers on business trips, except the following:

• foreign citizens have the right to freedom of movement for personal and business purposes within Russia on the basis of permits, except military and other cities and border areas, which require a special permit in accordance with the Federal Law (Article 11 of the Law);
• foreign citizens temporarily staying in Russia have no right to work outside the territorial entity of Russia where the work permit or a patent was issued, as well as by profession (specialty, post, kind of the employment), not specified in the work permit;
• an employer or customer of works (services) has no right to employ a foreign citizen outside the territorial entity of Russia where the work permit or a patent was issued, as well as by profession (specialty, post, kind of the employment), not specified in the work permit (except cases provided by the Law and other Federal Laws (paragraph 4.2 of Article 13 of the Law). Further we will look into the matter of these exceptions relied upon paragraph 4.2 of Article 13 of the Law.

All foreign citizens directed by the employer to work outside the Russian territorial entity where the work permit or a patent was issued, can be divided into 2 types.

The first type includes foreign citizens, who have a right to work in Russia without permits in accordance with the Law. These include a large enough list of categories of foreign citizens; the main ones are the following:

• foreign citizens permanently residing in Russia (PRP);
• citizens of the EEU members;
• accredited employees of representative offices of foreign legal entities, diplomats and members of their families, journalists, etc.

The employer may send foreign citizens of the first type to another Russian territorial entity without taking into account any legal exceptions, except the direction of foreign citizens in the official business in closed military and other cities and border areas.

The second type includes foreign citizens, who are required to obtain permits to work in Russia in accordance with the Law.

The Order of the Ministry of Health and Social Development of Russia as of 28.07.2010 N 564n established "cases of the work of foreign citizen, temporarily staying (residing) in Russia, outside the territory where the work permit (temporary residence permit) was issued". In accordance with this Order, the sending of a foreign worker to work in another Russian territorial entity different fr om the indicated in a work permit should go along with the following requirements:

• Foreign citizens temporarily staying in Russia have the right to work outside the territory wh ere the work permit was issued in case of the performance of work on professions and positions specified in the Order, including both ordinary workers, such as machinists, asphaltic macadam workers, artists, and leaders of senior management as well. A complete list of occupations can be found in the Order, herewith:

1. when sending on a business trip, the total duration of employment of a foreign citizen outside the Russian territory where the work permit was issued, may not exceed 10 calendar days during the period of the work permit;
2. the total duration of employment of a foreign citizen outside the Russian territory where the work permit was issued, may not exceed 60 calendar days during the period of the work permit, if the constant work is carried out by workers while traveling or the work involves traveling and this is defined  by the employment contract.

• Foreign citizens temporarily staying in Russia have the right to work outside the territory where the temporary residence permit was issued in case of the performance of work on professions and positions specified in the Order, including both ordinary workers, such as machinists, asphaltic macadam workers, artists, and leaders of senior management as well. A complete list of occupations can be found in the Order, herewith:

1. when sending on a business trip, the total duration of employment of a foreign citizen outside the Russian territory where the temporary residence permit was issued, may not exceed 40 calendar days during the 12 calendar months;
2. the total duration of employment of a foreign citizen outside the Russian territory where the temporary residence permit was issued, may not exceed 90 calendar days during the 12 calendar months, if the constant work carried out by workers while traveling or the work involves traveling and this is defined  by the employment contract.

• Foreign citizens have the right to work outside the territory where the work permit was issued in case they are highly qualified specialists, herewith:

1. when sending on a business trip, the continuous duration of employment of a foreign citizen outside the Russian territory where the work permit was issued, may not exceed 10 calendar days annually during the period of the work permit;
2. the total duration of employment of a foreign citizen outside the Russian territory where the temporary residence permit was issued, is not limited if the constant work is carried out by workers while traveling or the work involves traveling and this is defined  by the employment contract.

Finally, we would like to note:

• the profession or position of temporarily staying (living) foreign worker should be indicated the same in a work permit, in employment contract, as well as in all travel documents;
• the specified profession (position) must be listed in the Order № 564n;
• travel requirements of a job must be noted in the employment contract with a foreign worker.

If the foreign worker is not a highly qualified specialist and the profession (position) of a foreign worker, noted in a work permit and an employment contract is not contained in the above-mentioned Order, the sending of a foreign worker on a business trip is an administrative offense under Part 1, Article 18.15 of the Administrative Code. Part 1 of Article 18.15 of the Administrative Code establishes administrative responsibility for hiring a foreign citizen in Russia if he/she has no work permit when such a permit is required under the Federal Law. The sanction of this Article provides for a very serious penalty of a fine up to 800 thousand rubles or administrative suspension of activity of the organization up to 90 days.

It is important to remember that this article provides the responsibility not only for the employers, but for the employees and officials as well, the amount of fines is:

• for citizens - up to 5 thousand rubles;
• for officials - up to 50 thousand rubles.

Please note that 100 percent complying with the conditions of sending foreign citizens on business trips, specified in the Order № 564n, does not guarantee that there will be no claims from the Federal Migration Service and other competent authorities on verifying the correctness of the employment of foreign citizens.

Numerous court practices on this issue, especially in the territorial entities remote from Moscow, varies greatly, decisions are made in favor of the employers as well as the FMS. Often, the competent authorities do not take into account the conditions prescribed by the Order № 564n, using exclusively the positions described in the 115-FZ as of July 25, 2002 "On the Legal Status of a Foreign Citizens in Russia". However, taking into the account the existing Order, in case of unjustified claims regarding violation of the procedure of the work in the territory of Russian territorial entity, different from the one specified in the work permit, the employers need to defend their case in court, referring to the above-mentioned legal instruments.