Students’ visa can be valid even if they stay out of UAE for 6 months
Q: My daughter will appear for her Grade 12 examinations and thereafter, she will be pursuing her undergraduate education outside the UAE. I anticipate that my daughter may be unable to return to the UAE within six months. What are the implications that may arise owing to my daughter staying outside the UAE beyond the six-month period? Are there any exemptions that can be availed by my daughter which would allow her to retain her residence visa?
A: At the outset, it may be noted that the regulations pertaining to the expiry or cancellation of a residence visa are stipulated under the Federal Law No. (6) for 1973 concerning immigration and residence as amended by virtue of Law No. 7 of 1985, Law No. 13 of 1996 and Federal Decree- Law No. 17 of 2017 (the ‘Federal Residency Law’) read with the provisions of the Ministerial Decision No. (360) of 1997 regarding the issuance of executive regulation of the Federal Law No. (6) of 1973 concerning the entry and residence of foreigners (the ‘Federal Residency Rules’).
Pursuant to the first part of your query, it’s pertinent to note that a residence visa issued to an expatriate in the UAE may be deemed to have been cancelled if the individual concerned stays outside the UAE for a continuous period of six months. This is in accordance with Article 61 of the Federal Residency Rules, which states:
Article 61:
The residence permit granted to the foreigner shall be deemed to have been cancelled if the period of his stay outside the country exceeds six months.”
In pursuance of the above, your daughter’s residence visa shall be considered as cancelled if she stays outside the UAE for a period exceeding six months.
In response to the second part of your query, it may be noted that, it may be possible to prevent the invalidation of a residence visa despite the visa holder staying outside the UAE for more than six months or 180 days continuously, provided the visa is still within its period of validity.
This is in accordance with certain exceptions which are stated under Article 62 of the Federal Residency Rules, which states:
Article 62:
As an exception from the provisions of Article (61) hereof, the residence permit shall continue to be valid until the end of its term for the following categories: a) Foreigner women married to UAE national. b) Servants accompanying UAE nationals delegated to study abroad.
c) Servants and escorts of UAE national patients travelling or sent for medical treatment abroad.
d) Foreign patients (and their escorts) who are travelling or sent for medical treatment abroad, holding valid residence permits, provided that they present a medical report approved by the Ministry of Health or the Medical Services of the Armed Forces or the Police.
e) Servants of the members of the diplomatic and consular missions representing the state abroad, and employees of such missions holding residence permits in the state.
f) Foreigners delegated by the public sector corporations to attend training or specialisation courses, or those working in their employers’ offices abroad, and their families holding valid residence permits in the state.
g) Servants of the members of the ruling family in the UAE, who are serving their houses abroad, and who are holding valid residence permits in the state.
h) Students studying in one of the universities or institutes abroad.”
Since your daughter is pursuing her higher education outside the UAE, she may qualify for the aforementioned exception under Article 62 (h) of the Federal Residency Rules. However, you should contact the General Directorate of Residency and Foreigners’ Affairs (GDRFA) for further advice. The approval for the exemption is at the discretion of GDRFA.
Employment ban if limited period contract is terminated before 6 months
Q: I am employed on a limited duration employment contract by a limited liability company, which is established in the Ras Al Khaimah Economic Zone (RAKEZ). The probation period of my job contract is ongoing, and an employment residence visa has been issued to me on my employer’s sponsorship. However, I intend to resign from my employment as I am not comfortable with the working atmosphere in the company and the fellow employees. Am I liable to bear the visa costs? Will an employment ban be imposed on me?
A: While you have confirmed that your employer is subject to the provisions of Federal Law No. (8) of 1980 regulating employment relations in the UAE (the ‘Employment Law’), it may be presumed that the several ministerial decrees, issued in furtherance of the Employment Law may also be applicable, in addition to the Employment Law, in respect of your job matters.
And therefore, it may be noted that the relevant provisions of the Ministerial Resolution No. (52) of 1989 on the rules and procedures to be adopted at the labour permits sections with respect to the recruitment of non-national labours for the employment in UAE (the ‘Ministerial Resolution No. 52 of 1989’) and the Ministerial Decree (766) of 2015 on rules and conditions for granting a permit to a worker for employment by a new employer (the ‘Ministerial Decree No. 766 of 2015’) may also be applicable in your case.
Pursuant to the first part of your query, it may be noted that as per the provisions of the Ministerial Resolution No. 52 of 1989, an employer is required to undertake at the time of making an application for recruitment of an employee that he shall sponsor and be responsible for the person being recruited.
It may, therefore, be inferred that an employer may not collect or deduct employment visa costs from the employee in the UAE. This is in accordance with Article 6(a) of the Ministerial Resolution No. 52 of 1989, which reads as follows:
“The employer or its legal representative shall sign the recruitment application form prepared by the ministry for this purpose. Such form shall include the following undertakings:
an undertaking from the employer to the effect that he shall sponsor and be responsible for the recruited employee, the bearing of his recruitment expenses and his employment in accordance with the employment contract in a way not prejudicing the provision of the Federal Law No. 8 of 1980 referred to herein.”
Pursuant to the above, it may be noted that you shall not be required to pay to your employer, the cost for your employment visa, should you decide to resign from your employment.
In response to the second part of your query, it may be noted that an employment ban may be imposed on an expatriate employee, if he resigns from his limited duration employment prior to the completion of the employment contract. This is in accordance with the provisions of Article 128 of the Employment Law, which reads as follows: “Where a non-national employee leaves his work without a valid reason before the expiry of a contract for a limited period, he may not, even with the employer’s consent, take up other employment for one year from the date on which he left his work. It shall not be lawful for any other employer who is aware of the fact to recruit such employee or keep him in his service before the expiry of such period.”
Further, if the termination of an employment contract takes place before the completion of six months, an employment ban may be imposed on the employee to work even if such termination is by mutual agreement between the employer and the employee, except where the employee qualifies for the Skill Level 1, 2 or 3 as classified by the Ministry of Human Resources and Emiratisation. This is in accordance with the provisions of Article 1 (I) (2) of Ministerial Decree No. 766 of 2015, which states:
“A new work permit may be granted to an employee upon the termination of the said employee’s employment relation in the following instances: The two parties (employee and employer) mutually consent to terminating the contract provided the employee has completed a period of no less than six months with the employer; the latter provision is waived for employees that qualify for skill levels 1, 2 and 3, as per the ministry’s classification.”
Based on the aforementioned provisions of law, the competent authority at RAKEZ, governing your employment, may at its discretion impose an employment ban on you, should you wish to resign from your employment, now.