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NGO Working Group to Study the Immigration and Asylum Bill

Communication Forum for East Timorese Women (Fokupers), Sahe Institute for Liberation (SIL), Kadalak Sulimutuk Institute (KSI), HAK Association, La’o Hamutuk, Center for Development and Popular Economy (CDEP), Haburas, Catholic Bishops’ Conference of Japan (CBCJ), Dai Popular, Judicial Systems Monitoring Programme (JSMP), National Council of East Timorese Youth (CNJTL), Men’s Association Against Violence (AMKV), Timor Lorosa’e Journalists Association (TLJA), East Timor Sustainable Agriculture (HASATIL)

Secretariat: Office of Perkumpulan HAK, Jl. Gov. Serpa Rosa, Farol – Dili. Telp. 313323, fax 313324

Article-by-article commentary

on the Immigration and Asylum Bill

PDF File: English | Bahasa Indonesia

13 May 2003

Honorable Members

National Parliament

Democratic Republic of East Timor

Dili

With respect,

Following our letter on 5 April 2003, we would like to give further commentary on the Immigration and Asylum Bill. We are aware that the bill has already been passed by the National Parliament and sent to the President for the approval process. Problems with translation have delayed us in finishing our commentary.

Our previous letter only included commentary and critique of Articles 11 and 12. These two articles are only the clearest examples of the anti-constitutional and anti-foreigner attitude asserted by many parts of this bill.

Based on our analysis, we have already identified other articles in this bill, even if Article 11 and 12 were deleted, that would still be violating human rights, the RDTL Constitution and RDTL’s international legal commitments.

This commentary is not meant to be an authoritative legal opinion. Some of our concerns relate to fundamental rights; others relate to whether the immigration and asylum process created by this law will be functional given the existing material and human resources in Timor-Leste. Commentary in bold font is of primary importance, especially regarding Chapter 2 (Articles 9-12), Articles 15, 18, 29, 63, 86 and 90.

There are a few overall issues which relate to many sections:

  1. Limitations on freedom of speech, assembly and association are directed at foreigners but also infringe these rights for many East Timorese citizens and organizations which would be prohibited from having foreign staff, volunteers or members, or engaging in activities or programs with foreign participants.
  2. The power of the government to expel virtually any foreigner at any time, as well as the high fees, requirements to demonstrate assets, and unpredictability of visa renewals will strongly discourage investors and foreign tourists from coming to East Timor, hurting the country’s ability to develop its economy and provide jobs for its citizens.
  3. Absence of any requirement to advise potential deportees or denied asylum-seekers of their rights or to know why decisions are being made against them, and to appeal the reasons for such actions to a judicial authority. Although some appeal processes are defined, many which should be are not.
  4. Poor drafting and lack of definition of terms, leading to ambiguity and cases where the intention of the law would appear to be different than what it actually says.
  5. Unrealistic deadlines for processes and appeals in many cases, which will lead to cases being decided without full consideration of all relevant information.
  6. Failure to allow delegation of responsibility by the PNTL Commissioner and the Minister of the Interior, requiring the personal attention of these very busy people to procedures which are difficult or time-critical.
  7. Failure to specify the need for regulations or administrative bodies which can further develop many of the details and implement the procedures required by the law. Too much is dependent on Parliamentary law which will be difficult to amend or adapt to changing situations or lessons learned. It would be better for the law to spell out general principles and overall procedures, and leave the details to administrative regulations.
  8. Many sections of this law are inconsistent with the Refugee Convention and other treaties and conventions East Timor has ratified. Article 9(3) of the RDTL Constitution states: “All rules that are contrary to the provisions of international conventions, treaties and agreements applied in the internal legal system of East Timor shall be invalid.”
  9. Most of the foreigners currently living and working in East Timor, including staff of the UN, World Bank, and foreign governments, are not subject to this law due to agreements between the government of RDTL and their institutions. Paragraph 35 of the Status of Mission Agreement (SOMA) between RDTL and UNMISET, for example, states “the Special Representative and members of UNMISET [soldiers and civilian staff] shall be exempt from passport and visa regulations and immigration inspection and restrictions as well as payment of any fees or charges on entering into or departing from East Timor.” SOMA paragraph 22 states: “the Government shall promptly issue to contractors, free of charge and without any restrictions, all necessary visas, licenses or permits [for their entry into and departure from East Timor]. SOMA paragraph 27 applies the Convention on the Privileges and Immunities of the United Nations to UNMISET civilian staff and UN volunteers. Section 18(d) of that Convention states that these people are “immune, together with their spouses and relatives dependent on them, from immigration restrictions and alien registration.”
  10. Many government and parliamentary officials have given verbal assurances that this law won’t be applied against certain activities or individuals which support East Timor, even though its wording would allow it to be used against them. But those officials may not be making the decisions, and the police and courts are responsible to enforce laws as they are written, not according to the promises of a politician. If the enforcement is left to the discretion of Ministers or police officials, corruption and/or favoritism will be rampant. Furthermore, citizens and foreigners alike will not know what activities to avoid in order not to violate the law.

 

Section of the proposed law (unofficial translation)

Comment

Immigration and asylum are fundamental problems in modern states.

Increasing mobility among populations, social and economic problems influencing many regions around the world, conflicts, terrorism and the need to keep social peace lead States to face the issue of controlling immigration flows as a fundamental component of their policies.

The geographic location of the country, in the path of important immigration flows, places special interest in the need for a legal framework that organizes immigration and asylum.

Current border control is extremely deficient and is based on insufficient legal instruments that prevent the State from effectively carrying out the constitutional imperative of defending the Timorese people from the threats of transnational crime and terrorism.

The matter of refugees and the right to asylum also takes on a critical dimension in the current geopolitical context in which East Timor is inserted, where the lack of clear legislative framework is preventing an adequate response. Without forgetting international instruments in this area nor the ever present underlying human element, there is, nonetheless, a need to guarantee the right of the State to assess its capacity to provide shelter without jeopardizing internal security, international relations or the equilibrium among the Timorese population.

In order to address all these matters, a legislative framework has been developed which organizes all these matters in an integrated, consistent and efficient manner to provide the Democratic Republic of East Timor the necessary instruments to control its borders and immigration flows.

The National Parliament dictates, in the terms of paragraph 1 of Article 95 of the Constitution of East Timor, that the following will be law:

In general, immigration and asylum are not “problems”, but issues to be dealt with. Over the past 24 years, East Timorese often used the right to immigrate (i.e. cross borders) and to accept and receive asylum (i.e. climbing embassy fences in Jakarta). These rights also belong to people from other nations.

As a government whose Constitution specifies these rights, and which has signed the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Refugee Convention, and the International Covenant on Economic and Social Rights, RDTL has both a legal and a moral obligation to respect the rights enumerated in these documents. It is not enough merely to mention them; they need also to be obeyed.

Terrorism and other transnational crime should be addressed in separate legislation on those specific issues, since they can be committed by foreigners or East Timorese nationals. This bill tends to characterize all immigrants and asylum-seekers as potential criminals and terrorists.

Chapter 1: General Provisions

Article 1: Purpose

1. The current document regulates conditions for entry, permanence, exit and removal of foreigners from the National Territory;

2. The above does not preclude special agreements set out in international treaties and conventions that the Democratic Republic of East Timor is party to, adheres to, or becomes party to.

Clause 2 means that UN employees, foreign diplomats, World Bank employees, and perhaps other yet-to-be-specified special classes are not subject to this law.

Article 2: Definition of a Foreigner

1. For all effects and purposes this document defines a foreigner as anyone who cannot prove citizenship of East Timor.

2. Proof of citizenship is that which is described in the Citizenship Law.

Are people without papers foreigners, even if they were born here and have never left RDTL? How about East Timorese nationals who fled or were deported in 1999 and have not yet returned and therefore have no papers to prove their citizenship. This is a different definition from RDTL Constitution Article 3.

There should be a transitional period, and then perhaps reliance on the civil registry.

Article 3: Definition of Resident

Foreigners are considered residents or legal immigrants when they have been given a residency authorization which is valid and has been issued in agreement with this legal instrument.

The law needs a much more extensive section of definitions – many articles are unclear because terms like “good morals,” “lodging” or “national interests” are not defined.

Article 4: International Zone

For document control and other purposes concerning the enforcement of the present instrument, the international zone is:

a)   In ports and airports, the area between the embarking and disembarking areas as well as the area where passenger document control points are located;

b)  In land border areas, the area located between the foreign territory and the area where passenger document control points are located.

 

Chapter II: Foreigners Rights and Duties

Article 5: Principle of Legality

Foreigners residing in the Democratic Republic of Timor-Leste shall enjoy the rights and shall be subject to the duties enshrined under the Constitution and the laws.

Much of this section violates ICCPR article 2.1 and Section 23 of the RDTL Constitution (UDHR). Among the ICCPR articles contravened by this section are 1, 2, 18, 19, 21 and 22. UDHR articles 9, 18, 19, 20, 23 and 29, and ICESC articles 3, 8, and 15 are also contradicted.

In addition, RDTL Constitution Articles 40 and 42-45 guarantee basic rights to free speech, association and assembly to all persons, not only to RDTL citizens.

Article 6: Substantiating Documentation

1.   Foreigners must, at all times, carry the document that substantiates their identification and legal status in the National Territory in accordance with the provisions of the present statute.

2.   The document referred to in the previous paragraph must be presented by the foreigner whenever asked to by any authority or agent of the authority.

Clause 1 should allow photocopies or other ID instead of requiring foreigners to always carry their passports and visas. Alternatively, it could require a foreigner to produce such a document within a specified time period.

Clause 2 should define “authority or official” to exclude locally- or self-appointed security groups.

Article 7: Obligation to Notify

Resident foreigners must notify the Immigration Department of the National Police of East Timor (PNTL) within 60 days of any change in their marital status, profession, residence or nationality.

Could this not be done during the normal process of renewing or extending visas?

Article 8: Right to Work

1. Foreigner are permitted to engage in remunerated activity, whether self-employed or as a wage-earner, according to limitations established by law.

2. Engaging in remunerated activity is not permitted to foreigners who do not possess the appropriate visa or documentation as required by the present law.

3. Foreigners who are admitted into the country with a work visa to engage in remunerated activity as a wage-earner, can only engage in that activity with a different entity than that the one which employed him/her with express authorization from the East Timor National Police Immigration Department following a favourable recommendation from the Secretary of State for Labor and Solidarity.

Clause 3 should not require approval by the Secretary of State for Labor and Solidarity, since approval from that office was not required for the first employer a foreigner had upon entry. Also, what is the basis for such approval or rejection, and is there a right to notification or appeal? Investors are less likely to come if they cannot predict whether their foreign managers and employees will be allowed to stay in East Timor.

Article 9: Right of Association

1. Foreigners may associate or to affiliate themselves with cultural, religious, recreational, sports, charitable or assistance associations, as well as participating in commemorative meetings of their national days.

2. In addition to requirements stipulated in special laws on associations and corporate bodies, associations organized according to the above paragraph, which are exclusively made up of foreign members or in which the majority of members are foreigners, must register with the Ministry of the Interior (MI).

3. Registration of associations described in the previous paragraph must be made through an application lodged the Ministry of the Interior concisely describing the objectives of the association, and submitting a copy of the statutes or by-laws together with a detailed membership list.

By implication, this bans all associations with foreign members with other purposes, which violates many Constitutional and international human rights. Perkumpulan HAK, La’o Hamutuk, KSTL, the NGO Forum, most iNGOs active here, and many other organizations would be prohibited from having foreign members, staff or volunteers. This directly violates RDTL Constitution Article 43(1): “Everyone is guaranteed freedom of association provided that the association is not intended to promote violence and is in accordance with the law.”

Clause 3 states that associations in East Timor with a majority of foreign members are required to register and list their foreign members whether or not those members reside in East Timor. For a local chapter of an international organization, such as a religious order or an athletic league, this could be very difficult. Some such organizations (an East Timorese section of Amnesty International, for example,) would be prohibited as falling outside the scope of clause 1.

Article 15 of the refugee convention states “Right of Association: As regards non-political and non-profit-making associations and trade unions the Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country, in the same circumstances.” So under this section refugees have more rights than other foreigners.

If certain types of associations are considered dangerous and need to be outlawed, this could be spelled out as in the Constitution Article 43(3): “The establishment of armed, military or paramilitary associations, including organisations of a racist or xenophobic nature or that promote terrorism, shall be prohibited.” Broader or undefined restrictions are unconstitutional.

Article 10: Refusal and Annulment of Registration

1. The Ministry of the Interior will refuse the registration of an association required under the terms of the previous article whenever the objectives and activities of this association are prohibited by the present statute and by other national legislation.

2. The Ministry of the Interior may, for well-founded reasons, annul the registration of an association that obtained such registration through false statements of its objectives, or if the organization performs prohibited activities after it is registered.

3. Once the registration has been denied or annulled, the operation of the association is automatically suspended, and its officers who continue operations shall be deemed as committing the crime of disobedience.

4. The General Prosecutor, at the request of the Ministry of the Interior, will begin special judicial proceedings to dissolve any association which has been denied or annulled by the Minister of the Interior.

The concerns about Article 9 also apply here.

There is no provision for appealing the banning of an association, nor any specification about what law is violated by continued operation, or what the penalties are.

Article 11: Restrictions

1. Foreigners cannot:

a)   Own the majority of stock in a national mass media company, regardless of its legal nature, unless expressly authorized by the Government. This rule does not apply to written media directed exclusively to foreign resident communities for the purpose of disseminating foreign culture, literature or language;

b)   Own a majority of shares in a national commercial airline unless provided for by specific legislation;

c)   Participate in the administration of a trade union or professional organization, or in agencies that monitor paid activities;

d)   Provide religious assistance to the Defense and Security Forces, except in cases of absolute need and urgency;

e)   Engage in activities of a political nature or be involved, directly or indirectly, in affairs of State;

f)    Organize or participate in demonstrations, parades, rallies and meetings of a political nature;

g)   Organize, create or maintain associations or other entities of a political nature, even if solely to disseminate and publicize ideas, programs or platforms of political parties from their country of origin among co-nationals;

h)   Influence co-nationals or others to follow ideas, programs or platforms of political parties or factions from any country.

11.2 The restrictions stated in the previous number do not include:

a) Activities of a strictly academic nature.

b) Foreign technical assistance contracted by State institutions.

c) Activities of liberation movements recognized by the Government, in fulfillment of the Constitutional duty of solidarity.

d) Bi and multilateral assistance programs aimed at training and strengthening of democratic institutions that are constitutional and regulated by law.

Clauses 1c through 1h should be removed.

Clauses 1a and 1b would be more appropriate in a law regulating corporations or foreign investment.

Clause 1c prohibits East Timorese unions or other associations with affiliating with international unions or federations.

Clause 1d would, for example, prohibit the Pope or other foreign priest from giving communion or receiving confession from F-FDTL soldiers.

Clauses 1e and 1f give government officials broad latitude to prevent activities they dislike, or to expel foreigners who participate in such activities, even if those activities were nonviolent, nonpartisan, and supportive of East Timor.

Clause 1g prevents East Timorese from learning positive aspects of political projects or platforms carried out in other countries.

Red italicized wording was added by Parliament on 30 April 2003. Although these changes remove some of the limitations on aid projects of foreign governments (although not on local NGOs or trade unions), they do nothing to protect the rights of East Timorese civil society or other organizations to have foreign members, colleagues, or employees.

Article 10 of the RDTL Constitution reads “The DRET shall extend its solidarity to the struggle of all peoples for national liberation.” It says nothing about Government recognition of liberation movements.

Article 12: National Interest

The Ministry of the Interior by determination of the Prime Minister can, on good legal grounds, prohibit foreigners from holding conferences, congresses, artistic or cultural exhibitions whenever these may jeopardize relevant interests or international relations of the State.

This should be removed. The criteria for prohibition are broad, subjective, and open to misapplication. Violent or other events which violate the law are already prohibited by other legislation.

Red italicized wording was added by Parliament on 30 April 2003. It makes little difference.

Chapter III: Entry and Exit from the National Territory

Article 13: Border Controls

1. Entry and exit from the National Territory can only be made through established border control points during their hours of operation.

2. All citizens who enter or exit the National Territory are subject to immigration control.

This may create difficulties for returning refugees, and could have a provision for special border entry posts.

Article 14: Right to Entry and Exit

1. All citizens who can prove East Timor citizenship have the right to enter the National Territory.

2. Any citizen may leave East Timor provided no legal order has been issued to the contrary.

3. Notwithstanding the above provision, exit from the National Territory shall be denied to minors, nationals or foreigners, who travel unaccompanied by whomever has parental control over them or written authorization therein.

(1) What happens if an East Timorese national is unable to prove her or his citizenship?

(3) seems too restrictive; there are other ways for preventing trafficking in minors without barring them from nearly all unaccompanied border crossings. Passports would be required anyway, and airlines and ships could be required to follow special regulations for transporting minors. It also violates the UN Convention on the Rights of the Child, which RDTL is likely to sign soon.

Article 15: Denial of Entry

Entry to the National territory shall be denied to foreigners who do not meet all the requirements established in the present instrument or who constitute a risk or a serious threat to health, order, public safety or to the international relations of the Democratic Republic of East Timor.

This is dangerously broad and open to interpretation. It could be used to bar people who have already been issued valid visas.

Article 16: Travel Documents and Substituting Documents

1. For entering or exiting the National Territory foreigners must carry their passport or other recognized travel document.

2. The validity of the travel document has to be longer than the length of stay by at least three months, except in the case of an foreigner who is a resident of the National Territory.

3. Entry or exit into the National Territory is allowed to foreigners who:

a)   are nationals of Countries with which the RDTL has entered into agreements allowing their entry with an identification card or its equivalent;

b)   are bearers of a safe-conduct or its equivalent issued by the authorities of the Country they are nationals of or the Country they represent;

c)   are bearers of flight license or certificate for crew members described in Annexes 1 and 9 of the International Civil Aviation Organization or of other documents that may substitute them, while in the performance of their duties;

d)   are bearers of a seafarer identity document described in the Convention 108 of the International Labor Organization, while in the performance of their service;

e)   are bearers of a laissez-passer issued by the United Nations Organization (UN);

f)    are bearers of travel documents described in the Geneva Convention of 28 July 1951.

4. The safe-conduct in item b) of the previous paragraph will only be valid for transit, and when issued within the National Territory, will only allow the bearer to exit.

5. As well, foreigners who were issued documents by national authorities according to this instrument, are allowed to exit the National Territory.

For East Timorese nationals who have resided in Indonesia since 1999, this could be a problem. According to Article 2, they are “foreigners” if they do not have proper papers. Already, Border Control has been charging visa fees to East Timorese citizens who do not have appropriate documentation with them.

Article 17: Entry Visa

1) In order to enter the National Territory foreigners must present the proper valid visa for their travels, according to the present instrument.

2) Entry will be allowed into the National Territory to foreigners who:

a)  have a valid residency authorization or identification document issued to diplomatic personnel in accordance with the terms of this instrument;

b)  Prove they are working for the UN or one of its agencies within the National Territory;

c)  are exempt from the entry visa obligation because of bilateral or multilateral agreements entered into by the RDTL and the Country which they are nationals of.

3) Foreigners who enter the National Territory exempt from a visa can only remain for a 90 day maximum length of stay, without prejudice to the cases in which they get an extension according to the terms of this instrument.

4) Foreigners working for the UN or their agencies receive a special stay authorization which is valid until the end of their contract or mission with the UN as long as it is longer than 90 days.

5) Concession of the privilege described in the previous paragraph is under the jurisdiction of the Minister of the Interior and must be requested by UN representatives of their agencies duly credited in the RDTL.

6) What appears under items 4 and 5 of this Article applies similarly to foreigners working for cooperation programs entered to by the State and the country from which they are nationals of and the RDTL.

 

Article 18: Means of Support

1. Entry into the National Territory shall be denied to foreigners who do not have the means to support themselves for the length of their stay, who do not have a return ticket to a country that guarantees their reentry or whose status does not allow them to legally provide for themselves.

2. In order to enter and remain in the National Territory, foreigners must have the means to pay per capita an amount equivalent to:

a)   One hundred US dollars for each entry into the National Territory;

b)   Fifty US dollars for each day expected to remain in the National Territory.

3. The amounts mentioned in the previous paragraph may be exempted in case a support statement is presented by a national or a legal resident guaranteeing the support and lodging of the foreigner during their stay.

4. The support statement implies that the subscriber assumes the responsibility to pay for all expenses the Government may incur to remove the foreigner from the National Territory without prejudice to the criminal liability he/she may face by making false statements or giving false information.

5. For the purpose of the above paragraph and after payment of debt with an attached note, the support statement becomes an enforceable instrument.

6. The model for the support statement shall be approved by an order of the Ministry of the Interior.

[7 sic]. The amounts mentioned in this article will be updated annually by a joint order from the Minister of the Interior and the Minister of Planning and Finances.

(2) is a large amount of money, and would discourage tourists and potential investors. A person coming for a 90-day visit would have to have $4,600 in their possession. This is far more than it costs to live in East Timor.

This also makes it almost impossible for refugees and asylum-seekers to enter East Timor and have their claims examined, as is their legal right under the Refugees Convention.

Article 19: Purpose and Conditions for Staying

1. Entry into the National Territory shall be denied to foreigners whose purpose for staying is clearly contrary to the documents or statements presented.

2. Foreigners, upon request, must submit for the record the statements and documents justifying the purpose and conditions for their stay, or entry or transit within the National Territory.

What documents could tourists or casual visitors use to “justify the purpose” of their stay?

Perhaps this is only meant to apply to those seeking work visas?

Article 20: Entry Authorization in Special Cases

1. In situations of relevant national interest and for urgent humanitarian reasons, the entry into the National Territory may be authorized to foreigners who do not fulfill legal entry requirements.

2. Power to authorize such entry as described in the previous paragraph falls upon the Ministry of the Interior on good legal grounds.

3. Maximum validity of the entry authorization is 30 days, and it can be extended once for an equal period of time.

“relevant national interest” is very broad, the Refugee Convention obliges countries to accept refugees and fully assess asylum claims without considering their own national interests..

Article 21: Entry of Minors

1. Entry into National Territory shall be denied to foreigners who are minors when unaccompanied by the person who has parental custody or when there is no one in the National Territory duly authorized by the custodial parent to be responsible for the minor during his/her stay.

2. Except for duly justified cases, entry of a foreign minor into the National Territory will not be authorized when the custodial parent or the person whom the minor is entrusted to is not admitted into the National Territory.

3. If the foreign minor is not admitted into the National Territory, entry shall be denied to the person whom the minor is entrusted to.

 

Article 22: Power to Deny Entry and Exit

The power to deny entry or exit from the National Territory rests on the Director of the National Police of East Timor, who can delegate said power to the Head of the National Police Immigration Department and further delegate to the officers responsible at the border control points.

 

Article 23: Confiscation of Travel Documents

When the denial of entry is based on the presentation of counterfeit, false, belonging to someone else, or fraudulently obtained documents, the same shall be confiscated and sent to the Department of Immigration of the National Police.

 

Article 24: Verification of Document Validity

The Department of Immigration of the National Police may, in case of doubt about the authenticity of the documents issued by national authorities, may access the information on the records that allowed the issuance of said document.

 

Article 25: Carriers Responsibility

1. Carriers that transport into the National Territory by air, sea or land foreigners who have been denied access to said territory, must provide those foreigners their return trip in the shortest time possible to the port where they first boarded the carrier or, if this is impossible, to the country where the travel document was issued or to any other location where their admission is guaranteed.

2. Until the boarding of the foreigner has been verified, he or she is under the responsibility of the carrier.

3. Whenever it is justified, foreigners who have been denied entry will be removed from the National Territory escorted by elements of the National Police.

4. The carrier is responsible for all expenses incurred by the use of the police escort, including payment of any applicable fees.

5. In the case of denial of entry at a land border point, the return will proceed immediately after the formalities related to the denial of entry are completed.

The requirement to immediately expel foreigners who have been denied access to TL may make it impossible for them to appeal that decision, or to make legitimate application for asylum. It also violates the Refugee Convention.

Article 26: Decision and Notification

1. The decision to deny entry can only be made after a hearing with the foreign national.

2. The decision to deny entry shall be notified to the interested party, indicating the basis of the denial, the right to appeal and the deadline to exercise that right.

3. The carrier shall also be notified of the denial of entry for the purposes stipulated in the previous article.

This appears to apply to all visa applications, either in advance outside RDTL or at the border. Procedural mechanisms for notification and hearing need to be specified.

Who holds the hearing? Does the foreigner have the right to counsel?

Article 27: Appeal

1. The decision to deny entry can be appealed before the Ministry of the Interior and must be filed within eight days.

2. The remedy referred to in the previous number does not grant a reprieve.

If the person is denied entry and removed from RDTL (Article 25) before their appeal is heard, how can they file or argue the appeal?

Article 28: Rights of Foreigners who are not admitted

During the time spent in the international area of the border control post, the foreign national who has been denied entry has the right to contact a person of their trust, and to receive adequate assistance.

 

Article 29: Refusal of Entry

1. Entry into the National Territory shall be refused, and a record shall be kept of foreigners who:

a)   Have been expelled from the National Territory;

b)   Have left the National Territory as a consequence of notification issued under the terms of this instrument;

c)   Have been sentenced to incarceration for a duration of more than one year;

d)   About which there are strong indications that they pose a threat to the health, order or public security, or to the RDTL international relations;

e)   About which there are strong indications that they have committed or intend to commit what qualifies as a war crime, or an act of terrorism or an act contrary to the principles of the democratic rule of law.

2. Entry refusal provisions not subject to definite deadlines as per the terms of the present instrument will be periodically revisited to decide about their continuity or dismissal.

3. It is the responsibility of the Ministry of the Interior, following a request by the National Director of the PNTL to register the names in the list referred to in paragraph 1 above.

4. The courts and law enforcement authorities, within the scope of their authority, may request the interdiction of persons at the border to the National Director of the PNTL, who is the officer in charge of maintaining the list.

1c would exclude people sentenced for political crimes, including, for example, Indonesians and others who were imprisoned for advocacy or peaceful support of East Timor’s independence. The imposition of a prison sentence by a foreign government doesn’t necessarily mean that the person did something wrong under East Timor’s laws.

1d, especially the last point, is very broad. It is reminiscent of Indonesia’s blacklist which prevented many peaceful foreigners from visiting East Timor.

Is the list public?

Is there a procedure for appealing for the removal of a name from the list (other than the periodic review in clause 2)? How often is the list reviewed, and on what basis, since items 1a, 1b, and 1c are past events which will not change?

If there is to be such a list, the Interior Ministry should decide who is on it, not the police.

Chapter IV: Visas

SECTION I: GENERAL PROVISIONS

Article 30: Places of Issue

The visas referred to in this instrument shall be issued at the border control posts and in the consulates of the RDTL overseas.

 

Article 31: Valid Documents

1. Valid documents whereto affix visas are travel documents such as those described in this instrument, except those which, due to their nature, do not have a place to affix a visa.

2. In the cases mentioned in the last part of the previous item, the visas shall be affixed in an independent page.

 

Article 32: Visas on Family Passports

When a visa is issued on a family passport, the names of the members covered by the visa must be mentioned.

 

Article 33: Visa Formats

The different formats of visas appear in Annex 1 which is part of this instrument.

 

SECTION II: TYPES OF VISAS

Article 34: Types of visas

The following types of visas shall be issued:

a)  Ordinary visa;

b)  Work visa;

c)  Permanent residency visa.

 

Article 35: Ordinary Visa

1. Ordinary visas are divided in four different categories and are meant to allow entry into the National Territory for lengths of stay that do not qualify for work visas or permanent residency visas.

2. Ordinary Visa Class I is reserved for foreigners who travel to the National Territory for tourism or business, it allows a maximum length of stay of 90 days and is valid for up to one year with multiple entries.

3. Ordinary Visa Class II is meant for transit through the National Territory en route to another country, or between two international flights in a domestic airport, it allows a single entry and is valid for a maximum of 72 hours.

4. Ordinary Visa Class III is reserved for foreigners who intend to study in the National Territory, it allows a length of stay of up to one year and multiple entries, and it is renewable for the same duration upon proof of academic performance, registration and availability of funds and lodging.

5. Ordinary Visa Class IV is reserved for foreigners who travel to the National Territory in a cultural trip or for scientific research, as an artist or athlete, or as a correspondent of a foreign mass media organization, it allows a length of stay equivalent to the contract or mission with a maximum length of stay of 180 days, it can be extended, can be issued for multiple entries and is valid for one year.

There should be an additional category of Ordinary visa for family visits. This visa would be for East Timorese living abroad who come to visit relatives here. The fee should be low.

Article 36: Work Visa

1. Work visas are intended to authorize the bearer to enter the National Territory, on a temporary basis, to carry out a professional activity as an employee or independent worker.

2. Work visas exclusively allow the bearer to carry out the professional activity which he or she claimed for the granting of the visa and have the limitations described in Article 8, paragraph 3, of this instrument.

3. Work visas allow a length of stay of up to one year and are valid for one or multiple entries.

 

Article 37: Visa to Establish Permanent Residency

1. Visas to establish permanent residency are reserved to allow the bearer entry into National Territory in order to request authorization for permanent residency.

2. Visas to establish permanent residency are granted to the applicant who proves intention to remain permanently in the National Territory, who proves he or she has means of self support, has lodging ensured and does not have a criminal or police record.

3. Visas to establish permanent residency are valid for a single entry into National Territory and allow the bearer to remain for six months.

4. If the foreigner who requests a visa under the terms of this Article intends to perform a professional activity as an employee or as an independent worker, consideration will be given to granting the visa based on the goal of providing specialized labor to the various sectors of the economy to increase productivity and assimilating technology.

5. The number of foreigners that will be admitted under the terms of the previous paragraph, as well as the sectors of the economy in which they will carry out their activity, will be set annually by resolution from the Council of Ministers.

6. Granting a visa to establish permanent residency may be conditioned to residing in a specific region within the National Territory for a period of no longer than five years.

(2) should be more specific about what a criminal or police record is. It should entail conviction for a serious, nonpolitical crime.

SECTION III: POWER TO AUTHORIZE AND GRANT VISAS

Article 38: Authorizing Visas

1. Visas to establish permanent residency, common visas Class III and IV, and work visas shall be authorized by the Department of Consular Affairs of the Ministry of Foreign Affairs and Cooperation.

2. A consultation with the Immigration Department of the PNTL is not mandatory or binding to authorize the visas referred to in the previous paragraph.

3. A consultation with the government department that oversees labor and employment is not mandatory or binding to authorize work visas or visas to establish permanent residency and perform a professional activity.

4. Ordinary visas Class I and II shall be authorized by consulates of the RDTL abroad, and by the National Director of the PNTL when applied for at the border control points.

5. The authority of the National Director of the PNTL referred to in the above paragraph, may be delegated to the Head of the Immigration Department who can, in turn, further delegate to the officers in charge at the border control points.

 

Article 39: Granting Visas

1. Work visas, visas to establish permanent residency and ordinary visas Class III and IV shall be issued and granted, after being duly authorized, by the consular offices of the RDTL abroad.

2. In cases where the applicant resides in countries or territories where there are no RDTL consular offices, the request must be made directly to the Department of Consular Affairs of the Ministry of Foreign Affairs and Cooperation.

3. The visa authorization, in the case of the previous paragraph, is relayed to the visa applicant and to the anticipated border control point of entry into the National Territory, when the border control officers have the authority to issue said visa.

4. Ordinary visas Class I and II, after being duly authorized, shall be issued and granted at the consulates of the RDTL abroad, and at the border control points.

 

Article 40: Processing Documentation for Work Visas and for Establishing Permanent Residency

1. The requests for work visas and for establishing permanent residency must be accompanied by the following documents:

a)   Full identification of the applicant through an authenticated copy of their passport;

b)   Color photograph, permit size, with single color background;

c)   Certificate of clean criminal record and medical certificate attesting to the physical and psychological suitability of the applicant, issued by competent authority in the country of the applicant’s nationality, or from his/her country of residency for more than one year;

d)   Proof of support and lodging;

e)   Visa application specifying the reasons for requesting residency and the length of time of permanence, as well as a commitment statement by the applicant to honor all the legal requirements for the requested visa.

2. In the case of a working visa, or a visa to establish permanent residency with the purpose of performing professional activities, the applicant must also attach proof of employment offer, participation in a corporation, professional competence for performing an independent profession, or any other probatory document referred to the activity intended.

1c, especially “psychological suitability” is open to misinterpretation, and has the potential for unwarranted discrimination.

Chapter V: Extension of Permanent Residency

Article 41: Travel Document Requirement

Foreigners admitted into the National Territory, with or without a visa requirement, must have valid and recognized travel documents if they intend to remain longer than the time granted at the entry point in the border.

 

Article 42: Limits for Lengths of Stay

1. Foreigners who are bearers of visas can extend their stay in the National Territory with the following restrictions:

a)   Up to ninety days if the applicant holds an ordinary Class I visa;

b)   Up to three years if the applicant holds a work visa, which can be extended for subsequent 1 year periods;

c)   Up to 180 days if the applicant holds an ordinary visa Class IV, except journalists of foreign mass media who can extend their stay to the maximum time allowed, which is three years and for periods of 180 days;

d)   Until completing his/her studies if the applicant holds an ordinary visa Class III, the limit being the number of years anticipated for the course curriculum.

2. Foreigners admitted into the National Territory without the visa requirement can extend their stay for up to ninety days.

3. Extensions to work visas shall be contingent upon maintaining the working situation that granted the visa authorization, as well as the mandatory opinion of the government department that oversees labor and employment.

4. Extensions to lengths of stay granted under the terms of the present Article may be cancelled by the Head of the Immigration Department of the PNTL if the conditions that were the basis for granting the visa or the extension thereof are altered or if the presence of the foreigner in the National Territory constitutes a threat to public order, public security or international relations of the RDTL.

5. Extension denial sets in motion deportation procedures to exclude the foreigner from the National Territory as provided by this instrument.

Clause 3, with no specified criteria for the opinion from the labor department, creates unnecessary uncertainty about a foreigner’s ability to continue to work. If it is included, it should be better defined.

Clause 4 is very broad. If a person has been convicted of a crime or otherwise violated rules which could cause them to be deported, their visa will not be extended. There is no need for a general provision to be included here.

Article 43: Qualification

1. The authority to extend visas as per this Chapter falls on the National Director of the PNTL, who can delegate it on the Head of the Immigration Department.

2. Extensions are granted by means of a stamp affixed to the applicants travel documents, which model shall be approved by decree from the Ministry of the Interior.

The two individuals empowered to extend visas will spend a lot of their valuable time signing passports, which will lead to delays and distract from their other important duties, unless there is other legislation empowering them to delegate their responsibilities to others.

Chapter VI: Family Reunification

Article 44: Right to Family Reunification

1. In the National Territory the right to family reunification is recognized to foreigners who are family members of a resident immigrant with whom they lived in another country or of whom they are dependants.

2. The applicant for a Family Reunification request must have a valid residency authorization.

 

Article 45: Beneficiaries