COVID-19: Repatriation of foreigners

Due to the pandemic of the new coronavirus, the arrival of foreigners in Brazil by sea is restricted until the end of May. Currently, the entry of foreigners is authorised in two situations: for emergency medical care or for return to the country of origin by air.

Landing for repatriation is subject to authorisation by the Ministry of Foreign Affairs (MRE) and must be accompanied by Anvisa and the Federal Police. Understand how the repatriation process works in these cases:

Company responsibilities

The company responsible for the vessel (such as carrier or shipping agent) shall be responsible for the stay of the foreigner in Brazil in addition of having to organise the repatriation proceedings.

The company will need to carry out a formal consultation with the MRE for disembarkation and repatriation and to arrange all that is related to flights, dates and times. According to Technical Note 86/2020, the entire travel, accommodation and air transportation procedure must be provided by the company.

How to apply for repatriation

The company must provide the MRE with basic information, such as the location of foreigners, with reference to the vessel or quarantine hotel, the number of people to be repatriated and the date of the operation, with indication of flights and departure times. On the other hand, with the closing of the borders, the MRE will confirm whether the country of destination of the crew member will allow his return.

Definition of communication flow for the repatriation of foreigners in the context of the COVID-19 Pandemic:

1. Report

Considering the implementation of restrictive movement measures, in the face of the new coronavirus pandemic (SARSCoV-2), it is necessary to define a specific flow to communicate the repatriation operations of foreigners who are in Brazilian territory.

2. Analysis

In this document we present the procedures for communication regarding the repatriation of foreigners who are on board vessels or remain in quarantine in hotels, after disembarking from vessels or connecting flights and/or stopover in Brazil.

The actions involving the repatriation operations were agreed in the Executive Interministerial Group on Public Health Emergency of National and International Importance – GEI-ESPII, instated by Decree nº 10.211, of January 30, 2020.

It is up to the company responsible for the stay and accompaniment of the foreigner, to organise the repatriation operation, solving the questions related to flights, dates and times. In addition, the company must consult with the Ministry of Foreign Affairs – MRE (Secretariat for National Sovereignty and Citizenship Affairs – Tel: + 5561-2030-8733, e-mail [email protected]).

The formal position of the MRE on the possibility of repatriation will be forwarded to Anvisa’s International Affairs Advisory (AINTE/Anvisa) through the electronic mail [email protected].

The authorisation for the repatriation operation, issued by the MRE, must contain, at least, the following information: location of the foreigners (with the name of the vessel and its berth or the name of the hotel where they remain in quarantine and their location), number of foreigners which will be repatriated and the date of the repatriation operation. The responsible company must also present more detailed information, signalling the airport of departure for the repatriation flight(s), with the times of the flights.

After receiving a formal response from the MRE on the repatriation operation, AINTE will forward it to the General Management of Ports, Airports, Borders and Customs Enclosures (GGPAF) and Infrastructure Management, Means of Transport and Traveller in PAF (GIMTV) for sending to Coordination of Health Surveillance in PAF (CVPAF) that will accompany the operation.

3. Conclusion

The defined communication flow aims to ensure the pace and security of the foreigners’ repatriation process.

Switzerland vs. COVID-19

Like all other countries, Switzerland has been, and still is, affected by the COVID-19 pandemic.

Cases were as numerous as those in the most affected countries. However, the number of victims is significantly lower, probably because of the quality of the Swiss health care system and better organisation and implementation of government measures.

The Swiss Federal Council (Government) is currently undergoing a gradual exit from the lockdown which will take place in three phases, on 28 April, 11 May and 9 June.

These measures seem all the more credible because containment has never been complete in  Switzerland: non-food stores and pharmacies were closed, as were restaurants, but outside these sectors population was authorised to move and work.

In terms of economy, the closure measures have, as everywhere, caused a great deal of damage and a drop in GDP of approximately 8% is expected in 2020.

This is the result of both the measures taken and the fact that, as the Swiss economy is very integrated with the economies of its neighbours, the loss of purchasing power will be felt in Switzerland.

However, GDP is generally expected to rise by the same amount in 2021, according to projections by most economists.

Assistance measures taken

The federal government and the cantons have also taken measures to support companies and employees.

These compensatory measures include direct aid to companies which had to close or those whose turnover has been significantly reduced, intervention in the payment of commercial rents, loans, loans guaranteed by the public authorities, easier access to temporary unemployment, etc.

It is recognised that these measures have been effective, although they are insufficient to compensate for the losses suffered by businesses. In addition, the Federal Government and the cantons have been very reactive, with aid sometimes being granted within only two or three days.

The future of the Swiss economy

As is the case everywhere, lockdown measures, although not comprehensive, will have medium- and long-term implications.

However, one of the important advantages of Switzerland is that the public authorities were very lightly in debt and therefore have a significantly higher borrowing capacity than most of the other European countries. In addition, the federal budget has been in surplus in recent years, and the state wisely refused to listen to those who recommended the spending of the budget bonus.

Therefore, Switzerland has now a greater capacity to intervene without jeopardising the balance of public finances and without requiring new taxes from taxpayers.

Residence in Switzerland

This is probably one of the reasons why the establishment of a company in Switzerland, or the acquisition of a Swiss residence, is to be recommended today, provided that it corresponds to reality.

There is a concern that some other countries, including in Europe, will take very heavy fiscal measures, either at the end of this year or in the following years, in order to service their very heavy 2020 expenditure incurred.

It is highly unlikely that Switzerland will be forced to take equivalent measures.

It is therefore more than probable that in the coming years there will be additional advantages in establishing in Switzerland, not because of an improvement in the Swiss tax system, but because, compared to that, the taxation of neighbouring countries will be even higher than it is today.

Tax period extended for excise tax registrants

In an effort to support Excise Tax Registrants during the difficult circumstances caused by COVID-19, the Federal Tax Authority has decided to extend the tax period for businesses registered for Excise Tax, which commenced on 1/3/2020 for one month on an exceptional basis, to end on 30/4/2020. The tax period shall now respectively cover the months of March 2020 and April 2020, allowing registered businesses sufficient time to fulfil their tax obligations before the deadline.

Excise Tax Registrants must fulfil the following obligations:

  • file two separate tax returns, one for March 2020 and one for April 2020, by no later than Sunday, May 17, 2020; and
  • ensure that the Federal Tax Authority has received the tax payable for the tax periods as reported in the March 2020 and April 2020 tax returns by no later than Sunday, May 17, 2020.

Our expert tax lawyers are available to assist with this and all your tax needs during these difficult times.

24-hour curfew in major Saudi cities announced

Saudi authorities imposed a 24-hour curfew in most Saudi cities, the capital Riyadh as well as in Jeddah, Dammam, Al-Khobar, Tabuk, Dhahran, Al-Hofuf, Ta’if, Al-Qatif.

Residents can only leave their homes to get essential needs within their neighbourhoods between 6am and 3pm.

Only two passengers, including the driver, may be allowed inside vehicles.

Travel between cities is prohibited.

The curfew decision excludes essential workers in public and private sectors such as medical facilities and pharmacies, grocery stores, gas and oil stations, banking services and maintenance and operation, plumbing, electrical and air conditioning technicians and water delivery services and sewage tanks.

Contract renegotiation methods during COVID-19 pandemic

Since the coronavirus outbreak turned into a pandemic with global impacts, many companies turned their attention to the economic changes caused by several measures to contain the virus spread. In this regard, travel bans and orders for citizens to be quarantined, e.g., could affect great part of the obligations assumed in the contracts those companies are party to.

Several disruptions may still impair and cause breach of contract if the party (or parties) affected by the pandemic does not have a legal reason to refuse to perform its obligations, such as pay the price or deliver the goods in the date fixed by the contract. It can occur in many types of contracts, although it is commonly related to the ones whose subject is the sale of goods.

The internationally known principle of “pacta sunt servanda” admits some exceptionalities that allows a party to release itself from perform its obligation without being carried in liability. The force majeure clause is a great example of legal reason settled in a contract when it becomes difficult, onerous or even impossible to be performed by a party. Many discussions about considering COVID-19 pandemic as a force majeure event arises in both common law and civil law countries according to the examination of each contract’s content.

Pursuant to article 79 of the UN Convention on Contracts for the International Sale of Goods (Vienna Convention), a party may not be liable if its failure was due to an event out of its control. The same convention enforces in article 59 that the buyer “must pay the price on the date fixed by or determinable from the contract”. Regardless whether the contract may contain possibilities for finding a solution when the payment (or the obligation discharge) cannot occur in the fixed date, serious disagreements can be triggered.

Nevertheless, this scenario can be even worst if the business negotiation becomes a litigation, or even arbitration, issue. Besides expending money and time, the parties may miss the chance to set the best alternatives for their interests due to an event, again, out of their control. That is why recalling mediation as dispute resolution method in such case of unpredictable circumstances is important. By preserving either relationship or business from unnecessary discussion, the parties are free to set their strategic choice for preserving contract as well.

Thus, the Singapore Convention on Mediation enhances the paramount benefits of mediation to resolve commercial disputes. Such convention itself describes mediation as way to “reach an amicable settlement of their dispute with the assistance of a third person or persons (“the mediator”) lacking the authority to impose a solution […]”. And maybe that is the great advantage of using business mediation: the parties can solve the issue together, by setting an amicable deal. The imposition of a solution without the participation of the parties could affect not just the current negotiation, but the future ones too.

The focus needs to be in solutions based on the preservation of both negotiation and relationship behind this while situations such as COVID-19 pandemic occurs. Hence, it is time to mediate, not to disagree.

Employers’ Rights During the Coronavirus/COVID-19 Outbreak

In accordance with the Law on Occupational Health and Safety and the Code of Obligations, employers must ensure the occupational health and safety of their employees at the workplace. The employer must provide the necessary resources to ensure occupational health and safety at the workplace. It is necessary to take measures such as providing a sufficient amount of soap, cologne and hand disinfectant in the workplace and take measures such as ventilation of the workplace by employers. Employers should avoid risks that could lead to a dangerous situation for their employees, they have to eliminate existing risks, or replace existing risks with non-hazardous or less hazardous factors. If necessary, stopping workplace activities may be considered. In this process, international travel and meetings should also be restricted. Employers should also be informed about the COVID-19 epidemic and the measures taken in the workplace in this context and appropriate instructions should be given to the employees regarding health and safety measures. In this case, employees must also comply with all the measures taken regarding occupational health and safety.

If employees have an infection or suspicious symptoms, they should report these to their employers per their loyalty obligations. This is also important for ensuring occupational health and safety in the workplace. However, the definition of what poses risks should be clearly defined by employers and employees should be informed about this. Employers may recommend that their employees explain their findings, such as infection and suspicion, to their employers and authorised persons such as the workplace’s occupational health and safety board. The employer can’t give instructions to the employers to inform their employers about the symptoms of the disease due to data confidentiality, but this can be recommended to ensure health and safety in the workplace, employees should nevertheless express such concerns in secret. Because of the protection of their health and the health of their colleagues, they need to be careful. Although the employer is not obliged to notify the employees having the infection detected in the workplace to the health institutions, it would be appropriate for the employers to inform the health officials about this situation in case of such danger or suspicion. However, the employer can’t force his employee to be examined if he finds a suspect of infection. This situation can only be recommended. If the employee does not listen to these recommendations, if the employer deems it necessary, the employee can be gone on leave, provided that one is paid.

If employees prefer not to come to work due to the epidemic, the option of shortening their working time or part-time work may be considered. However, according to the Labour Law, changes in working hours must be notified to employees in advance and approved by employees in writing. If the employees do not approve of this change in writing within 6 working days, the employer cannot accept this change. It is also an option to send the employee unilaterally on leave, provided that the employee continues to be paid by the employer and the employee is ready to work. Employer’s encouragement or coercion of employees to work remotely is also one of the measures that can be taken in this epidemic environment. If a decision is taken to work from home in the workplace, employees will continue to receive full salary without any interruption and the employer will provide their employees with the technical equipment necessary to work from home. Employees also have the right to participate in short-term working and receive an allowance. For the employees to benefit from the short-time working allowance, the working hours of the workplace should be temporarily reduced by at least a third or the activities in the workplace should be stopped completely or partially for at least four weeks. If the employer justified the demand for the short-time working of the employee, he can contact the Employment Agency to provide a short-time working allowance for employees up to three months. In the short-time working, half of the wages of the first week are paid by the employer then a certain amount of wages will be paid from the unemployment fund to be deducted from the unemployment allowance. If verified coronavirus cases are detected in the workplace, employees can refrain from working. In this case, employers should continue to pay salaries even if the employees do not perform their duties. In the case of a force majeure such as the spread of the outbreak in Turkey and to threaten the general population, unpaid leave, as long as the mutual agreement of the employer and employee, is another option available to employees. The employer or employee can offer unpaid leave. If the proposal comes from the employee, the request for leave must be reasonable and the time off must be temporary. In the case that an employee does not have a request for unpaid leave with his consent, employers should use this option as a last resort and should never force their employees for unpaid leave. The employer must inform the employee in writing regarding unpaid leave in advance, and the employee must accept this request in writing within 6 business days. If the workplace activities are temporarily suspended and no employee contracts are terminated during this period, the employer is not obliged to inform the Social Security Institution. If the employee cannot participate in workplace activities due to force majeure, the employer is allowed to pay half of his salary for each day to the employee who cannot work for a week, according to the labour law. However, if the force majeure continues for more than a week, the employee or employer may terminate the employment contract for just cause. In this case, the employee will have all legal rights such as severance pay, overtime, unused vacation, but he will not be able to receive notice pay. On the other hand, if the workplace activities are stopped by the authorised institutions, the employer cannot terminate the employment contracts of his employees. However, in this case, the employee may have all legal rights, including severance pay, excluding notice pay, by terminating the employment contract for just cause.