I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Antigua and Barbuda is a twin-island nation lying between the Caribbean Sea and the Atlantic Ocean. It consists of two major inhabited islands, Antigua and Barbuda, and a number of smaller islands. A former colony of the United Kingdom, Antigua and Barbuda gained independence in 1981. The system of justice is based on English common law. There are magistrates' courts in various parts of the country. There is also 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. At this time, 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. Very important is the list of visa-exempted countries to be found in the passport and visa (exemption) orders that are issued from time to time. The list of countries exempted from visas include Commonwealth countries, European countries, certain countries of Latin America, Japan, China and the United States. On the other hand, holders of an Antigua and Barbuda passport enjoy visa-free travel to approximately 130 countries, including the United Kingdom, Canada and the countries of the Schengen Area. Antigua and Barbuda allows dual nationality.
ii The immigration authorities
The Minister responsible for 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. The requirements for work permits are governed by the Antigua and Barbuda Labour Code.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 obligated 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 obligated to open its borders to citizens of the Eastern Caribbean states (Grenada, Saint Vincent and the Grenadines, Saint Lucia, Dominica, Saint Kitts and Nevis, and Montserrat).
III THE YEAR IN REVIEW
In 2014, Antigua overhauled its Immigration and Passport Act. It consolidated and updated the law regarding immigration to Antigua and Barbuda. The new legislation has passed the House of Representatives and the Senate but must now receive the assent of the Governor General and be published in the Gazette before it comes into force. It has also been published in the Gazette and is now in force. In the meantime new regulations have been published in the Gazette intended to deal with citizenship by investment applicants for Antigua and Barbuda passports.
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 or not 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 Citizenship by Investment Program10 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 Regulations passed under it make provision for three paths to acquiring an Antiguan and Barbudan citizenship, by investment of at least US$400,000 in an approved real estate project in Antigua and Barbuda; by contributing US$250,000 to the National Development Fund for a family of four (two children below 18); or by investing US$1.5 million in an approved business in Antigua and Barbuda. Children under 26 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 65 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.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 Citizenship by Investment programme must spend at least 35 days in Antigua and Barbuda during five calendar years after his or her registration as a citizen.
The government of Antigua is currently making a limited-time offer, with fees limited to US$50,000 for a family of up to four people until 4 June 2016 under the National Development Fund investment option.
VI OUTLOOK AND CONCLUSIONS
The Citizenship by Investment Act will probably undergo further minor changes. The residency requirement of 35 days could be reduced or eliminated. With the upcoming elections in mid 2016 we may also see other minor changes in the Citizenship by Investment programme.
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 Sir Clare K Roberts QC is the founding partner at Roberts & Co, and Sam M Bayat is the senior resident lawyer at Bayat Legal Services. The information in this chapter was accurate as of May 2016.
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.