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December 2009 - January 2010
A Passage to India
Travelling to India has always attracted much interest and excitement. Often however, for foreigners and NRIs alike, discussions abound on what inoculations need to be arranged prior to travel, what seasonal adventures await a visitor on arrival in India, and how to get the best bargains when out there! What is often not addressed or what is least considered is the visa status of the visitor. Business visitors may have occasionally paused to consider whether travel should be undertaken on a business visa or whether a work permit is required. It is in relation to this category of business visit, that changes are afoot and all visitors must carefully consider whether they qualify for a B visa or should be applying for an E visa. Thus if you are proposing to visit India for “work”, to ensure a smooth passage into and out of the country you need to ensure you apply for and visit India on the correct visa.
Indian immigration is in a state of flux. Recent changes instituted by various Indian Consulates and High Commissions around the globe have raised many questions for clients and professional advisors in relation to appropriate visa categories and related formalities. A few clarifications have been forthcoming from the Union Government in respect of the confusion surrounding the visa status of foreign nationals. These relate to the issue of undertaking activities which technically and specifically are in the nature of ‘employment’ but are often undertaken in India by foreigners visiting the country on a business visa. These clarifications came in the form of frequently asked questions (FAQs) released by the Ministry of Home Affairs last week and appear to provide a fairly comprehensive delineation of the regulatory position in respect of business visas and employment visas in India.
Fresh concerns have emerged relating to the correct visa categories for visitors such as independent consultants like lawyers, accountants, medical professionals etc. who may be deemed to be undertaking ‘employment type work’ whilst on a business visit in India. Further, the distinction drawn between the legal employer and the sponsor as mentioned in the FAQs also raise some concerns of compliance in respect of Indian laws.
The controversy started with several foreign nationals who were in India on business visas being summoned by their respective FRROs in August and September and being asked to leave the country by the end of September. The deadline was subsequently extended till October 31, 2009. Apparently, these business visa holders were carrying on project/execution of contracts in India which was in breach of their business visa conditions. Although it was widely believed that the sudden enforcement of the authorities was aimed at the mass scale abuse of the business visa category by some Chinese nationals who came to India to execute projects/contract work and included both high and low skilled workers, the consequence of the stricter enforcement applies to all foreigners in India on business visas who may have been wholly or partially in breach of the regulations.
Despite the fact that the latest FAQs released by the Ministry of Home Affairs are significantly helpful in shedding light on the relevant issues, greater clarity is needed in what constitutes a business visa and what activities must be undertaken on an employment visa. Equally importantly, it remains to be seen, as to how the respective Indian High Commissions and the Indian Consulates in different parts of the world that work under the aegis of the Ministry of External Affairs (a separate government ministry) put into effect the spirit of the FAQs as these agencies are responsible for the assessment of the correct visa category and the issuance of such visas.
The main rule of thumb is that no employment type activities should be conducted on when visiting India on a business visa. Two main factors are considered by the issuing authorities when considering issuing a business visa, namely duration of stay and nature of activities. A decision is made based on a review of the background circumstances of a particular applicant coupled with a degree of discretion of the administrative official making the determination. A key factor is whether the visitor will be doing productive or employment related work. As business activities have not been clearly defined in any legislation or rules, it is important that advice is taken to ensure that a proposed activity would qualify for a visit on a business visa.
Our recommendation pending further clarity is to review each potential application on a case by case basis, particularly reviewing the activities to be undertaken by an assignee in India and where in doubt, liaising with the local consulates to determine the correct applicable visa category required for the applicant. Persons of Indian origin who qualify should seriously consider obtaining a PIO (Person of Indian origin) card or OCI (Overseas Citizen of India ) card that allows a PIO/OCI card holder to visit and work in India without the need for any specific visas.
Disclaimer: Please note the information provided is for guidance and background information only and no action should be taken on the basis of the above without seeking proper legal advice.
For a copy of the FAQs or further information please contact Shalini Agarwal, Partner, ALMT Legal on firstname.lastname@example.org or Tel: + 44 (0)20 7645 9190; Fax: + 44 (0)20 7645 9194. ALMT Legal has a dedicated immigration team that can assist with visa related issues.