SERBIA’S NEW LAW ON FOREIGNERS
Law on Foreigners (Official Gazette of RS, No. 24/2018) (hereinafter “the Law”) came into effect on April 3, 2018, though its application is postponed by 6 months, i.e. it shall start to be applied on October 3, 2018.
The Law is aligned with EU Directives which regulate this area, and the novelty is that all issues which the old law did not regulate, but which were applied in practice, have been now regulated.
The most important novelties of the Law are related to:
Entry and exit of foreigners from the Republic of Serbia
Reasons for denying entry to foreigners have been prescribed, the manner in which entry is denied to a foreigner via denial of entry decision on a standardized template, specifying exact reasons for the denial of entry. An appeal against this decision on denial of entry may be filed. This is a new way of denying entry to foreigners, since up to now this was done verbally, with the placement of stamp of denial of entry onto the foreigner’s travel ID.
In this way, national legislative has been harmonized with that of the EU defining this area, and also the possibility of appeal has been introduced which enhances the legal safety and guarantees the two-instance principle of decision-making.
Competence of the bodies for filing a request for visa issuance
In special cases, diplomatic-consular representative office may consider and decide on the request filed by the foreigner, who is legally located on their consular premises, but does not have residence in that country, in case when he/she provides evidence of urgency of the trip to the Republic of Serbia for which a visa is needed.
Also, against the decision on denying a visa request, request for issuing a visa at the border crossing, cancellation or termination of visa, extension of visa validity and denial of entry to the Republic of Serbia, a foreigner may file an appeal with the decision-making body within eight days following the reception of the decision.
The Law prescribes new basis for obtaining temporary residence, and also the basis which had already been applied in practice but had not been regulated by law, such as ownership of real-estate in the Republic of Serbia.
Temporary residence may be granted to a foreigner who intends to stay in the Republic of Serbia over a period longer than 90 days based on: (i) employment, (ii) education or learning Serbian, (iii) studying, (iv) participation in programs of international exchange of pupils or students, (v) professional training, training and practice, (vi) scientific research or other scientific educational activities; (vii) family reunification; (viii) providing religious services; (ix) treatment or care; (x) ownership of real-estate; (xi) humanitarian stay; (xii) status of assumed human trafficking victim, (xiii) status of human trafficking victim, (xiv) other justified reasons pursuant to the law or international treaties.
Temporary residence based on family reunification
The Law prescribes independent, i.e. autonomous residence for a foreigner who has had temporary residence in the Republic of Serbia at least four years on account of family reunification. By introducing this to national legislation, foreigners have been enabled to obtain temporary residence after a certain time period independently from the person who has enabled him/her temporary residence based on family reunification.
This rule provides foreign citizens with independency from their, for example, spouse, protecting in this way the personal integrity of a foreigner who has been previously tied for four years to the spouse and through whom the foreigner qualified for residence in the Republic of Serbia.
The foreigner who has continuously been in Serbia on temporary residence over the last three years based on family reunification may, at his/her request, be approved independent residence in cases when the citizen of the Republic of Serbia or foreigner has died and this person was the basis on account of which the foreigner qualified for family reunification.
Also, Article 59 of the Law enables foreigners–victims of family violence to be granted independent temporary residence in the Republic of Serbia regardless of the duration of the granted temporary residence based on family reunification.
With family reunification in the sense of the Law, immediate family includes: spouses, common law partners, their children born in or out of wedlock, adopted children or stepchildren under 18, who have not been married.
In exceptional cases, immediate family may include: blood relatives based on legal basis of a citizen of Serbia or a foreign citizen who has been granted temporary residence or permanent residence in the Republic of Serbia or blood relative on legal basis of his/her spouse or common law partner, who depends on them and does not have adequate family care in the country of origin or a child of the citizen of Serbia or foreigner who has been granted temporary residence or permanent residence in the Republic of Serbia who is over 18 or child of his/her spouse or common-law partner who is over 18 and has not been married, who has a health condition due to which he/she cannot care for themselves.
Marriage of convenience
The Law prescribes and introduces a new term, marriage of convenience, defining circumstances that indicate a marriage has been entered into out of convenience.
Temporary residence, i.e. extension of temporary residence on account of family reunification, will not be granted to a foreigner if checks which refer to the circumstances under which marriage has been entered into reveal that the marriage was entered into out of convenience, i.e. that there is reasonable doubt that the marriage was entered into with the aim of obtaining temporary residence.
Applying for temporary residence and deadlines
A foreigner who legally entered the Republic of Serbia and did not need a visa to enter, as well as a foreigner who has entered the Republic of Serbia with a long-stay visa, files an applicationfor temporary residence within 90 days following the last entry, i.e. during the validity of the long-stay visa. Therefore, in cases when the foreigner needs a visa for an up-to-90-days stay in Serbia, the application may be filed only in cases when the foreigner has been approved a long-stay visa, visa D.
In exceptional cases, when there are humanitarian reasons or force majeure reasons or this is in the interest of the Republic of Serbia, the foreigner who has legally entered and is legally residing in the Republic of Serbia with a short-stay visa may file a request for granting temporary residence, with supplying of evidence on the existence of the mentioned reasons.
Basis for filing an application for temporary stay must be identical to the basis for issuing the long-stay visa.
Application for extending temporary residence is filed at least three months in advance and not later than 30 days prior to the expiry of the validity of the temporary residence.
A foreigner who applies for temporary residence, i.e. for extension of temporary residence, in due timemay stay in the Republic of Serbia until the resolution of the first-instance procedure, i.e. until the resolution of the second-instance procedure in case of an appeal against the decision of denying the application.
If it is in the interest of the Republic of Serbia, if it is established that there are humanitarian reasons or on account of force majeure, the competent authority may consider the application for extending temporary residence of a foreigner filed after the expiry of the current temporary residence, if the time period between the expiry of the previous temporary residence and the filing of the application for the extension of the temporary residence is under three months.
If the competent authority grants the extension of temporary residence, period between the expiry of the previously approved temporary residence and the filing of the application for the extension of temporary residence is considered legal and the continuous residence.
Permanent residence may be granted to foreigners who have been continuously living in the Republic of Serbia for over five years based on granted temporary residence.
A foreigner who has temporary residence in the Republic of Serbia based on study or education cannot file an application for permanent residence in the Republic of Serbia. Though a foreigner who has spent a certain period of time on temporary residence based on study or education in the Republic of Serbia, but later changed the basis for residing in the Republic of Serbia may file an application for permanent residence. Only half of the time the foreigner spent in the Republic of Serbia based on studying or education may be included in the calculation of time needed for granting permanent residence.
Therefore, the Law limits the possibility of filing an application for permanent residence to persons staying based on temporary residence for studying or education and requires them to possibly change the basis of their stay.
Also, a novelty is the possibility of filing an application for permanent residence after 5 years of temporary residence for foreign citizens whose residence is based on ownership of a company, work and employment. This period was 10 years under previous law.
Attorney at law Stefan Mojsić
The information contained herein has been provided only for the purpose of general information and cannot be considered as a legal opinion or legal advice. Accordingly, the Law Firm PetrovicMojsic& Partners disclaims all responsibility and accept no liability in respect to actions taken or not taken based on any or all the contents contained herein.