Immigration LawForeigners trapped in Colombia: what alternatives do they have?

By: Rodrigo Tannus Serrano

Our borders remain closed to date, as do the restrictions on air traffic, which are expected to reopen on September 1. As a result, Colombian and foreign residents continue to be unable to enter or leave the national territory unless they have been accepted under repatriation plans coordinated by the Colombian and foreign authorities, as applicable, for humanitarian reasons or in cases of force majeure. However, there are a significant number of nationals and foreigners who have not been able to leave Colombia and as a result, they are not clear about how immigration and tax legislation will apply to them in each particular situation.

For those foreigners who are trapped in the country, they should bear in mind that it is currently possible to apply for and issue visas at the Ministry of Foreign Affairs office located in the city of Bogotá.

However, for the time being, they will only be able to obtain their electronic visa since there is no public attention and, therefore, the corresponding visa cannot be stamped in their passport.

On the other hand, if the employment contract signed between a Colombian employer and a foreign worker, regardless of its modality, is terminated, paragraph 8 of Article 57 of the Substantive Labor Code must be analyzed, as well as Article of Decree 1067 of 2015, to determine whether the reasonable costs for the return of the foreigner and their family to their place of origin must be covered, since this obligation will cease if the termination of the contract, in labor matters, is caused by the fault or will of the worker. Furthermore, the time at which the employer’s obligation to bear the costs must be met, as well as the responsibility and extent of the obligations that the sponsor of a visa or permit would maintain, despite the termination of the employment relationship with the foreign national during the pandemic, should be analysed based on the current circumstances.

Meanwhile, Migration Colombia suspended, until August 31st of this year, the requests for procedures and services of some processes that require the foreigner’s presence, such as Issuance of identity cards for foreigners, safe passes, among others. However, those foreigners who are holders of Entry and Stay Permits (PIP) and have not managed to leave the country before the expiration of the permit, the terms of validity of these will be provisionally suspended, with the commitment to leave the country as soon as the situation is normalized in terms of flights or granted a visa to stay regularly in the national territory.

From the tax perspective, the effects of the pandemic have led to foreigners who in the first instance did not have tax residency in Colombia, meaning that they had not stayed for more than 183 days continuously or discontinuously, in a period of 365 consecutive calendar days, becoming Colombian tax residents based on tax regulations. Although Dian reported that an allegation of force majeure could be made to justify events of involuntary stay due to the obligatory isolation and closure of borders, it also mentioned that the term to stay in the country for the purpose of determining tax residence was not suspended during the emergency, which obliges us to carry out a study of each particular situation.

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