I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Antigua and Barbuda, a twin-island nation located in the Caribbean Sea, consists of two major inhabited islands and a number of smaller islands. A former colony of the United Kingdom, Antigua and Barbuda is an independent Commonwealth country comprising its two namesake islands and several smaller ones. Positioned where the Atlantic and Caribbean meet, it is known for reef-lined beaches, rainforests and resorts. English Harbour on Antigua is a yachting hub and the site of the historic Nelson's Dockyard marina. In the capital, St John's, the national museum displays indigenous and colonial artefacts. Antigua and Barbuda gained independence in 1981 and its system of justice is based on English common law. There are magistrates' courts in various parts of the country and the High Court of Justice, which deals with the more serious civil and criminal matters. All constitutional matters are tried in the High Court. The Court of Appeal is part of the Eastern Caribbean Supreme Court and is a peripatetic court, travelling from island to island to hear appeals. The Judicial Committee of the Privy Council in England is the final court of appeal.
i Legislation and policy
Immigration is regulated by the Immigration and Passport Act.2 The Act provides for the orderly entry and exit of persons to and from Antigua and Barbuda, whether they arrive by sea or air. Regulations under the Act set out the procedures to be followed and the forms and fees to be used in the immigration process. The list of visa-exempted countries to be found in the passport and visa (exemption) orders that are issued from time to time are very important is. The list of countries exempted from visas include Commonwealth countries, European countries, certain countries of Latin America, and China, Japan and the United States. On the other hand, holders of an Antigua and Barbuda passport enjoy visa-free and visa-on-arrival travel to 130 countries, including the United Kingdom, Russia, Bolivia, India and the countries of the Schengen Area. Antigua and Barbuda allows dual nationality.
ii The immigration authorities
The Minister in charge of Labour and National Security is responsible for immigration and passport issues. This Immigration Department is under the general policy control of the Minister and consists of an establishment of public officers to ensure the implementation of government immigration policy. Antigua and Barbuda's Labour Code regulates issuance of work permits for foreign nationals.3
iii Exemptions and favoured industries
Under the Free Trade and Processing Zone Act,4 every person who is not a citizen of Antigua and Barbuda requires a special work permit to work in the Free Trade and Processing Zone. An application to employ a non-citizen shall be submitted to the Free Trade and Processing Zone Commission on a prescribed form and accompanied by such particulars as the Minister may by regulation prescribe. If the Minister is satisfied that there is no suitable person in Antigua and Barbuda with the kind of skill or expertise required, he or she may approve the application and obtain the required work permit for the proposed employee. However, the Cabinet may approve the application of any other person.
II INTERNATIONAL TREATY OBLIGATIONS
As a member of the Caribbean Community (CARICOM), Antigua and Barbuda is obliged to allow freedom of movement of persons and goods throughout the member states of CARICOM.5 A CARICOM citizen must hold a passport from a qualifying CARICOM country and have a certificate of that country certifying the immigrant as a skilled worker. Entry to the country will be granted initially for a period of six months, followed by an indefinite stay, if all required documents are in order. Antigua and Barbuda is also a member of the Eastern Caribbean Common Market and therefore obliged to open its borders to citizens of the Eastern Caribbean states (Grenada, St Vincent and the Grenadines, St Lucia, Dominica, St Kitts and Nevis, and Montserrat).
Types of visas issued prior or upon entry to Antigua and Barbuda are:
- multiple entry visa, which is valid for one year; and
- single entry visa.
The requirements for a visa application are;
- biodata page of a valid passport or travel document with valid transit or re-entry permit for any country for which the visitor may be ticketed (passports must be valid for a minimum of six months from the date of arrival in Antigua and Barbuda);
- a recent colour passport photograph (45mm x 35mm, with all photos to be on a white background only, and not altered or edited from their original state);
- evidence of the proposed journey into and out of Antigua and Barbuda (i.e., tickets or confirmation of the booking from a travel agent);
- proof of accommodation for the length of the stay or a letter of invitation from a sponsor. Students must provide the acceptance letter from the school and details of where they will be staying during their studies. Individuals travelling on business must provide a letter from the employer concerned, stating the purpose of the trip;
- proof of funds to finance the trip (i.e., bank statements for the previous two months);
- A recent police record (discretion may be exercised by the visa-issuing office);
- birth certificate; and
- immigration status in passport or residency permit (i.e., that of any other country or the state of Antigua and Barbuda).
III THE YEAR IN REVIEW
In recent years, Antigua and Barbuda, like other Caribbean nations, has dramatically reduced minimum investment thresholds for its Citizenship by Investment (CBI) programme. The Antigua and Barbuda government made permanent the extension of the 50 per cent discounted price of US$100,000 (reduced from US$200,000) with effect from October 2019, and the real estate investment requirement was reduced to US$220,000 (for an equity limited share).
Since 12 October 2018, the University of the West Indies (UWI) Development and Endowment Fund has been an available option for investors willing to donate at least US$150,000 to be enrolled in the CBI programme. Appropriate changes were published in the official Antigua and Barbuda Gazette and are now in force.
Following changes in 2019, Antigua and Barbuda now offers the cheapest CBI passport for families with up to four children. Antigua and Barbuda signed new visa waivers with a number of countries, including Russia, Ukraine and Kosovo, and it has now upgraded all national passports to biometric passports.
The Cabinet approved the following further new changes in April 2020:
- Iraqi nationals can now apply for passports following the lifting of restrictions, and certain restrictions have been relaxed for nationals of other countries;
- the National Development Fund (NDF) processing fee increased slightly to US$30,000 for families (see Section V);
- government fees on real estate and business investments for citizenship were reduced by US$20,000, down from US$50,000 to US$30,000 (see Section V); and
- there is a limited time offer, valid until 31 October 2020, on fees for the addition of dependent children to approved applications, as follows:
- dependants aged 0–5 years: US$10,000; and
- dependants aged 6–17 years: US$20,000.
Bitcoin and other cryptocurrencies are to be accepted for the Antigua and Barbuda CBI programme, according to a recently announced government decision. This proposal is still in the pipeline and has yet to be implemented.
IV EMPLOYER SPONSORSHIP
i Work permits
Persons who are not citizens of Antigua and Barbuda may not work without first obtaining a work permit. Section F4 of the Labour Code states that 'a person who is not a citizen of Antigua and Barbuda shall not engage in employment or self-employment in Antigua and Barbuda unless he has obtained a work permit issued by or on behalf of the Minister'. Work permits are issued to non-citizens through the Labour Department. The general policy is to grant work permits where local labour is not available. It is an offence for non-citizens of Antigua and Barbuda to work in Antigua and Barbuda without a work permit or without exemption from obtaining a work permit.
The application process consists of filing the application in the prescribed forms with the Labour Department in addition to payment of the requisite fee. The application must be supported by the following documents:
- a notarised copy of the applicant's passport;
- a job description of the work to be undertaken; and
- the original police record of the applicant (this must be obtained from the applicant's country of residence for the preceding six months).
In considering the approval of the application for a work permit, the Minister considers, inter alia, the effect of the grant upon employment opportunities open to citizens of Antigua and Barbuda. Furthermore, the application form requires the employer to state whether the vacancy was advertised locally.
Each employer is responsible for deducting taxes out of the employee's salary to be paid to the regulatory authorities on behalf of the employee. Employers are also responsible for paying their contribution to the Medical Benefits Scheme6 (3.5 per cent of an employee's basic salary, with 3.5 per cent paid by the employer) and to social security7 (3 per cent contributed by the employee, with 5 per cent paid by the employer).
ii Labour market regulation
The government uses the work permit regime to control the resident labour market. Certain sectors are reserved for local residents. Thus, for instance, work permits would not be granted for jobs in the small-enterprises sector. It is also expected that positions would be advertised in the local press to ensure that citizens have the opportunity of applying for the jobs. The Labour Department also encourages unemployed citizens to register with that department.
iii Rights and duties of sponsored employees
Work permits are granted in respect of a particular job with a particular employer. If an employee changes his or her employment, he or she must apply for a new work permit. Work permits are usually granted for a period of one year, which allows the Immigration Department to stamp the employee's passport to remain in the country for one year. If the employee is legally resident in the country for seven consecutive years, he or she may apply for citizenship.
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
The policy of the government is to welcome investors to invest in various sectors of the economy. Direct foreign investment is sought after and in view of this the government has set up the Antigua and Barbuda Investment Authority (ABIA)8 to take the initiative to attract investors and entrepreneurs to the country. The ABIA works with potential investors to assist with approving a package of investment incentives, including obtaining the necessary work permits. The ABIA provides investors with the necessary support and facilitation services, and intelligence on local facilities and industry sectors.9
Antigua and Barbuda commenced its CBI programme10 in the middle of 2013 when it passed its Citizenship by Investment Act. The long title to the Act describes it as 'an Act to enable persons to acquire citizenship of Antigua and Barbuda by registration following investment in Antigua and Barbuda and for incidental and connected purposes'. The Act and its implementing Regulations make provision for acquiring Antiguan and Barbudan citizenship: by contributing to the NDF; by contributing to the UWI fund; by investment in an approved real estate project in Antigua and Barbuda (the minimum investment now permanently includes a co-application option); and by investing in an approved business in Antigua and Barbuda. With effect from 1 April 2020, one more pathway has been introduced under the real estate option, where the full purchase price of a real estate unit shall be no less than US$200,000. Children under the age of 28 years who are dependent and studying full-time may be included in the parent's citizenship application. Parents or grandparents of the main applicant or his or her spouse above the age of 58 years, living with and fully supported by the main applicant, may be included in the citizenship application. Applicants must also pay government and due diligence fees (see details below).11
Application for citizenship by investment is made through licensed agents to the Citizenship by Investment Unit.12 The new Antiguan and Barbudan passport holder through the CBI programme must spend at least five days in Antigua and Barbuda during five calendar years after his or her registration as a citizen.
As stated above, with effect from 1 April 2020, the NDF processing fees have been increased to US$30,000; in relation to real estate and investment for business purposes, the processing fees have been reduced from US$50,000 to US$30,000.
i Qualifying investments for citizenship
The following investment options are available under the CBI programme:
- US$100,000 contribution to the NDF, with effect from 1 November 2017;
- US$150,000 UWI fund option, with effect from 12 October 2018;
- US$400,000 real estate investment; or
- US$1.5 million business investment.
Costs for dependants are additional. The passport is granted for a five-year period after which it can be renewed. As noted above, to be able to renew the passport, the new passport holder must spend at least five days in the country during five calendar years after registration as a citizen.
- US$100,000 contribution for a single applicant, or a family of four or fewer; and
- US$125,000 for a family of five or more.
Other fees payable include passport fees. Fees are subject to change.
UWI fund option
The UWI fund option is currently open for applications and has been in effect since 12 October 2018, when it was introduced as a fourth investment option following a Cabinet decision. The new university campus is expected to bring economic benefit to the country and will inspire many youths to pursue tertiary education.
Foreigners can qualify for Antigua citizenship by making a one-time contribution to the UWI fund on the following conditions:
- a contribution of US$150,000 inclusive of processing fees is required for a family of six (i.e., six is the minimum number of persons). US$15,000 is payable for each additional dependant; and
- one member of the family will be entitled to scholarship for one year (tuition only) at the UWI campus.
Government processing fees for the UWI fund option:
- US$30,000 for a family of four; and
- US$15,000 for each additional dependant
Due diligence fees for the UWI fund option:
- US$7,500 for the main applicant;
- US$7,500 for the spouse;
- US$4,000 for dependants over 18; and
- US$2,000 for dependent children aged 12–17.
Passport fees for the UWI fund option are US$300.
Real estate investment
The value of the real estate purchase must be at least US$400,000 to qualify for an Antigua and Barbuda passport. You must hold the real estate for five years, after which you can sell it on the market and still retain citizenship.
Joint investment is also possible with each investor contributing US$200,000 for real estate. Note that there is an additional US$30,000 processing fee for the real estate and business investment options; this fee does not apply to the NDF contribution, which is the cheapest investment option.
The Citizenship by Investment Unit shall, after consultation with the ABIA, approve businesses, whether existing or proposed, for the purposes of investment in business under the CBI programme.
The following two business investment options are available: the single-person investment, where a person proposes to make an investment of at least US$1.5 million in an approved business on the applicant's own behalf; and the joint investment, where at least two persons propose to make a joint investment totalling at least US$5 million in an approved business and each of those persons individually proposes to contribute at least US$400,000 to the joint investment. CBI applications may be submitted on behalf of the applicant or applicants through an agent.
Processing fees for the business investment option are U$50,000 for a family of four or fewer, and US$15,000 for each additional dependant.
The application process is similar to that for the NDF contribution, namely upon submission the applicant will be asked to pay the due diligence fees and 10 per cent of the government processing fees. Upon receipt of a letter of approval the applicant will be asked to pay the balance of the government processing fees and the business investment amount within a 30-day period. Because of the potentially varied nature of business investments, any escrow agreement will be negotiated between the parties concerned, but transfer of the investment sums must be made within 30 days of issuance of the approval letter.
VI OUTLOOK AND CONCLUSIONS
The Citizenship by Investment Act will probably undergo further minor changes. The residency requirement of five days could be reduced or eliminated. The government pledges to implement policies in accordance with calls from international community owing to concerns expressed by Organization of European Cooperation and Development and the European Union on the risks of money laundering and tax evasion, especially in the case of circumventing the Common Reporting Standard.
Antigua and Barbuda is well on the way to reforming its immigration and passport legislation. It has passed new and modern legislation but the proof of the pudding will be in the implementation of the legislation.
1 Sam M Bayat is the senior resident lawyer and Mohamed Ismail is a legal adviser at Bayat Legal Services.
2 Cap. 208.
3 Cap. 27.
4 Free Trade and Processing Zone Act 1994 (12/1994), Section 15.
5 Caribbean Community & E. Caribbean Common Market Act, Cap. 68; Eastern Caribbean Common Market (Ratification of Agreement) Act, Cap. 144; Caribbean Community Skilled Nationals Act 1997.
6 Medical Benefit Act 2010 (4/2010).
7 Social Security Act (Cap. 408).
8 Investment Authority Act 2006 (15/2006).
10 Citizenship by Investment Act 2013.
11 Citizenship by Investment Act 2013 (No.2 of 2016, Regulations 4(3) and 5(2).