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20 July 2012
The final exit of the US armed forces from Iraq following the expiration of the Status of Forces Agreement on December 31 2011 created an unforeseen legal issue in Iraq. US contractors - who had previously been granted immunity from Iraqi laws, specifically the immigration requirements - were forced to comply immediately with the federal immigration and residency requirements. To meet this challenge, the Ministry of Interior and Ministry of Foreign Affairs quickly promulgated a new set of immigration procedures to allow certain approved defence contractors to seek exemption from the normal immigration rules.
The substantive laws which govern residency and foreign workers in Iraq have not been altered by the superseding immigration processes for defence contractors. While the ideal resolution would be the passage of a revised residency law which successfully accommodates all foreigners in a comprehensive and defined manner, the new instructions are an expedient form of gaining access to Iraq and obtaining residency for employees associated with approved defence contracting companies.
In addition, the process has not changed in the areas controlled by the Kurdistan Regional Government (KRG). While the jurisprudence which governs immigration and residency applies equally to both the KRG and federal Iraq, the KRG has applied the laws in a different way and maintains a separate immigration and residence process.
The Foreign Residency Law (118/1978) is the controlling law for residing in and entering and exiting Iraq and the KRG. The law requires all foreigners to enter with a valid passport and visa, and to exit with a valid exit visa through the proper channels.
Under the law, 'foreigners' are defined as individuals who do not possess Iraqi citizenship or have Iraqi nationality. 'Expatriate citizens' are individuals belonging to the Arab nation, but who do not reside in an Arab state or hold the nationality of an Arab state. Both groups are required to have valid visas to enter Iraq.
The law makes the Iraqi Immigration Department and the Ministry of Foreign Affairs responsible for controlling exit/entry requirements. Any violation of the law is punishable by imprisonment of between one and three years. It is also possible for a three-year jail term to be imposed on anyone who has overstayed his or her visa and who has failed to request an extension through the appropriate residency office. Other penalties may also be imposed. Life imprisonment and government seizure of personal property are possible for those who continue to enter the country illegally through improper channels.
The law sets down the ongoing reporting requirements of all foreign nationals visiting Iraq. The law manages and directs the entry, residence and departure of all foreigners in the country. The director of residency is responsible for ensuring that all visiting individuals remain in the country only for the time specified in their visas. The residency officer has the authority to implement and enforce the law.
Iraq allows for several types of visa which may be obtained by an individual on entering Iraq, at the Iraqi embassy in the jurisdiction where the applicant is a citizen or a resident, or in Iraq.
An ordinary visa authorises the holder to enter the country once in a three-month period following the date of issue. Its maximum validity period is three months.
Foregin nationals should obtain a residency stamp at the main residency office in Baghdad for stays lasting more than 10 days. Valid qualifications or proof of employment, two passport pictures and HIV test results must also be provided. Citizens of Arab origin cannot enter Iraq even if they hold valid visas unless they are journalists, holders of a diplomatic passport or foreign nationals married to an Iraqi citizen. The full list of foreign nationals who are allowed entry visas is available at the Iraqi Embassy. Passport and visa requirements are also subject to change within a short period of time and often differ at different ports of entry.
A political visa is issued based on instructions given by the minister of foreign affairs to implement the principle of reciprocal treatment under the Geneva and Hague Conventions.
A tourist visa is issued to foreign nationals who wish to enter Iraq for leisure, family gatherings, vacation and other personal reasons. Applicants may be permitted single or multiple entries. Holders are authorised to enter Iraq once in a three-month period following the date of issuance and to stay in the country for one month. A religious visa holder should enter Iraq once within seven days of issue of the visa and can reside in the country for 15 days for religious purposes. Extensions are available up to a maximum period of 30 days.
For approved companies which maintain an active defence-related contract approved by the Ministry of Interior, the Ministry of Interior and and the Ministry of Foreign Affairs have created a streamlined new process. In order to establish eligibility for a 10-day, single or multiple-entry or exit visa or an extended (up to a maximum of one year) multiple-entry visa, which allows individuals to stay and work in Iraq, the following steps must be taken:
While the flexibility and expediency of the new process should be recognised, it still remains a short-term solution for a larger problem. A modern residency law is required to accommodate Iraq's new role as a member of the international community. Such future residency law must provide a comprehensive framework to deal with the large number of foreign workers now present in Iraq. Without a modern and comprehensive law on which to rely, foreign direct investment remains dependent on short-term, unpredictable measures which are often prone to treacherous domestic political dialogue.
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Thomas W Donovan