Tim Elliot: Hello and welcome to Lawgical, wherever in the world you’re listening. This is the regular weekly podcast from the Dubai-based law firm, HPL Yamalova & Plewka. It’s still the Gulf Region’s first and only legal podcast. I’m Tim Elliot. I’m here again at the firm’s offices on the 18th floor of Reef Tower in Jumeirah Lakes Towers. The Managing Partner is Ludmila Yamalova. Nice to see you.
Ludmila Yamalova: Great to see you as well. Thanks for being back.
Tim Elliot: Lawgical is a weekly opportunity to consider legal questions particular to the United Arab Emirates. You can always get in contact with us for legal answers. The best way to find us in LYLawyers.com. In this edition, travel bans. Now, Ludmila, it’s probably reasonable, even fair to say, that most residents of the U.A.E. have heard of a travel ban being put in place upon an individual. It’s also reasonable to state that most of us don’t really understand the ins and outs of what bans on travel actually are. Let’s start there. What is a travel ban?
Ludmila Yamalova: In the simplest of terms, a travel ban is a record on the government system regarding a particular person’s ability to leave the country or come into the country. It’s prohibition from basically, ultimately, leaving the country, though there are certain kinds of travel bans that also disallow someone to enter the country, but it’s a different type of travel ban. That’s in the simplest terms.
Now, with regard to what triggers a travel ban, and in the simplest of terms once again, it really relates to a criminal matter, a criminal case or allegation.
Tim Elliot: Right. An unfinished criminal case or allegation.
Ludmila Yamalova: Correct. It does not necessarily have to be a final judgment. It could just be an allegation.
Tim Elliot: Okay. An allegation of what? You said something that I didn’t like, therefore, I have a complaint?
Ludmila Yamalova: For example, let’s say using that same example, I said something that you considered to be defamatory or offensive to you. You go to the police and you report me to the police on the basis that perhaps I sent you a WhatsApp message that offended you. Under the U.A.E. laws, that could, and I highlight the word could, constitute defamation, which under the U.A.E. law is a criminal offense. Now, you’ve made that allegation and the police have called me in to take my statement. In that particular case, because let’s say the WhatsApp message was pretty clear about the defamatory nature. There isn’t really anything subjective about it or subject to interpretation. Therefore, the police says, yes, that’s certainly defamatory and under the U.A.E. this is a criminal offense. Therefore, we are going to send this to prosecution. But really some of it depends or a lot of it depends on the gravity of the offense, but let’s say that particular statement I made somehow affected your business and it was something very serious. At that point in time the police decide this is serious enough for them to not only just transfer to prosecution, but to classify this particular offense as serious, whatever the appropriate legal allegation it may translate into. On that basis, the police can now place me on the travel ban.
That happens in different ways. They can either just request that I deposit my passport with the police and, voila, you have an inability to travel. Or, and this has been stated in the past and we have yet to see how this works out in the future, the police can update government systems which will allow you to keep your passport but ultimately if you want to travel because you’ve been placed on this travel ban list you cannot travel. You cannot exit the country even though you have physical possession of the passport. That is the development that was not so long ago introduced that in lieu of taking people’s passports, now the authorities will just update their own internal systems and will notify a particular person that there is a travel ban against them or not. But that’s a newer system and we have yet to see it play out in practice. For the time being, when we talk about a travel ban in most cases it’s because you physically are required to hand over your passport to the authorities.
Tim Elliot: Let’s consider the latter case, that the system’s been updated, and you are still in possession of your own passport. How can you find out if a travel ban is in place? Because if your passport is with you, you wouldn’t necessarily know. Is there a notification system? Can you check?
Ludmila Yamalova: In theory and as per the latest decree, there is supposed to be a notification, but currently if you did want to check that, you can approach the immigration authorities and find out whether there is a travel ban on your immigration file. It is possible to do. That information is fairly accessible as long as you are the one that’s inquiring for that information or someone that has official authority to act on your behalf, in other words, somebody under a power of attorney.
Tim Elliot: Okay. How much do we know of the process of the imposition of a travel ban?
Ludmila Yamalova: At this point, not very much because the idea here, let me just classify perhaps in two major classifications or categories. Travel bans can be placed when, for example, there is (1) an allegation of some criminal offense, an allegation. I highlight the word allegation. It’s just the beginning of the process. There is one kind of process with regard to the position of passport and the travel ban that’s at play in the scenario. (2) The other one is when there is a final court judgment and the person has now been convicted. That’s a different process that works in that particular scenario.
Let’s start with an easier one. There is a final court judgment and the person has been charged guilty. As part of the judgment, the court will issue the appropriate penalties are that are attached to the judgment. In criminal cases, it could either be a fine, or it could be a fine and imprisonment, or it could be a fine, imprisonment, and deportation. In most cases when there is a serious offense there is a jail sentence plus deportation. But once that judgment is made, the person ultimately is being held in detention. Once the person is in detention, we know that usually, early on in the process the passport is deposited with the police and it resides with police and stays with the police until basically you either have been acquitted or you’re being put on a plane and sent away. That’s with regard to the final judgment.
Now, what’s more challenging and where we don’t really have visibility to what goes into the process or the decision of requesting a person to deposit their passport is in cases of allegations versus a final judgment. Let’s go back to your scenario of a defamatory case. You have made allegations that I defamed. But it may be in that particular case we slightly vary your scenario, and the statements I wrote in my WhatsApp message perhaps are not so clearly defamatory and more subjective. Who is the ultimate arbiter to decide whether it’s defamation or not? If it’s something very clearly defamatory, you could see how the police would act differently, but if it’s something a little more subjective, ultimately, it’s really only the judge can decide whether a certain word is defamatory or not. In that case, we don’t really know what factors are used by the authorities to decide which one of these allegations required the deposit of a passport and which ones do not.
Let’s say if it is something serious, an allegation of serious theft. We are not talking about a box of mangos. For example, a more serious amount of money that’s being stolen. In that particular case, the police may decide this is serious enough and so we do not want this person to travel because ultimately there is a risk of this person wanting to exit the country quickly to basically take that money out of the country.
Tim Elliot: So an assumption is made as to whether a person is a flight risk or not.
Ludmila Yamalova: We are speculating. These are the factors. We don’t have visibility of the factors that are used, but we’re just speculating and using some logical assumptions that that would be one factor that would lead the police to request that the passport is deposited with the authorities. But something where perhaps it’s more of an innocuous or subjective statement that I made against you that you now claim to be defamatory, the police may say it’s not serious enough. They may still want to send the case further down the road to the prosecution and ultimately the court, but it’s not serious enough for them to warrant requesting that I hand over my passport. Those are the factors that we can speculate are being considered in deciding which circumstances warrant physical handover of the passport and which ones do not. That’s really more speculative. The police or the authorities don’t share the specific guidelines or a list of factors or requirements to look at in making that determination.
Tim Elliot: Okay. But travel bans do happen. How do you get a travel ban removed in that case? What is the procedure other than going through the system?
Ludmila Yamalova: Sure. That’s where it depends on the underlying offense or allegation. Let’s use the simplest example, a bounced cheque. These days, in this age, a cheque that is for the value of over 200,000 dirhams is a criminal offense. Anything below it is not. If I bounce a cheque for 150,000 dirhams, you can no longer file a case against me with the police. If I bounce a cheque for 250,000 dirhams, then it is criminal. I bounced a cheque and now, with that, you have proof that the cheque was dishonored. You go with that proof to the police and you file a criminal case against me for that. Now, as part of this, the police almost instantly will add my name to the travel ban list. Then they call me in and in most cases I’ll be required to deposit a passport unless the new system is used, but in any event, we have seen many cases like this where even without the passport the person can no longer leave the country because they are now on the travel ban list. But remember, it’s over the allegation of a bounced cheque. Now I come to the police and I bring the 250,000 dirhams to pay off that debt. In that case, it’s a fairly easy resolution of the issue because once I pay the money, the police basically in the same instance can update the records and remove my name off the travel ban list. In that case, the travel ban gets lifted very quickly in relative terms.
Now, if it is an allegation of let’s say defamation that is serious or something a little more serious, assault or kidnapping or serious theft, things of that nature, in most cases, well, first of all, you could actually offer somebody else’s passport in lieu of yours kind of as a guarantee, but the authorities don’t always allow for that. But in most cases, so in a way that also acts as a lift, in some terms, a lift of a ban at least. At least you have the physical possession of the passport so you can leave the country, but there is somebody else acting as your guarantee.
Tim Elliot: That person then cannot leave the country.
Ludmila Yamalova: Indeed. Yes. We have had cases where these kinds of arrangements were made and the person who had left the country never came back, so the guarantor was stuck here. Quite unfortunate.
Tim Elliot: And that person is then no longer able to travel.
Ludmila Yamalova: Correct. Now, there are a few other examples of a travel ban that might be issued for someone, for example, who had absconded from the country. It depends on the type of abscondment. We have seen cases where, for example, an employer files an abscondment case against their employee and as part of this the person has been placed on the travel ban list. However, depending on the type of abscondment, employers, and we have done this before as well, if they settle the abscondment matter, they have the right to appeal to the authorities or to allow authorities, so to speak, to remove that person from a travel ban list or from a blacklist.
There could also be issues related to immigration, so any violations of immigration laws could also result in a travel ban. Usually in connection with any immigration offenses there is a fine or a penalty that needs to be paid to the authorities. Depending on the offense, it could just be a matter of a fine and then the travel ban is lifted, or it could be permanently fixed to one’s record because a violation if immigration law often leads to deportation. Once a person has been placed on a deportation list, it’s almost impossible to lift that travel ban for them to ever be allowed to enter the country.
Tim Elliot: I was going to ask that. How does having had a travel ban in the past affect you from a criminal record perspective? If you’ve had a travel ban lifted, does that appear as criminal activity?
Ludmila Yamalova: It depends on the underlying offense or allegation. If it’s a bounced cheque, no. Because once the cheque is paid, then there is no more criminal record.
Tim Elliot: The debt is paid.
Ludmila Yamalova: Yes. The debt has been paid. Usually the debt is the cheque, so once that has been paid. But you’re right. For example, is it an unpaid judgment? Once you’ve paid the judgment, in most cases that does not stay on your record. However, with something more serious, then it will appear on your record. But in cases, for example, where someone’s name appears on the travel ban list because of the allegation of a criminal case, so the person may not be able to leave the country for as long as the investigation and the court proceedings are ongoing, but ultimately the court may deem the person not to be guilty. At that point in time, then the travel ban gets lifted fairly quickly.
For example, we had a case where there was a dispute in the employment context between two partners. One partner alleged that the other partner had stolen certain confidential information. It was in a different emirate. On the back of that, they were able to file a criminal case. In that particular emirate, the police had requested that the person deposit their passport with the authorities. The court process went on for about a year and ultimately the judge held that there was no guilt. The person was acquitted 100%, but in the meantime, while the investigation and the court proceedings were ongoing, they didn’t have the freedom to leave the country. But at the end once the judgment was issued and the person was acquitted, then obviously that’s when the travel ban gets lifted.
Tim Elliot: So the travel ban is effectively a method through which the legal system can look for a legal resolution. It’s a tool, isn’t it?
Ludmila Yamalova: For sure. In the past, this tool was even more effective because not so long ago, for example, the use of postdated checks and checks as guarantees was a very commonly used tool. People would secure all sorts of obligations by virtue of these checks. For example, you would take out a bank loan or a car loan or a person loan or a credit card loan, what have you, a mortgage, and so you would take the benefit of that money and then get on a plane and leave. It was just all too easy for a lot of people, especially for those who were not citizens of this country, they always have a place to go somewhere else, and so in a way perhaps the criminality of bounced checks at the time was heavily relied on because of that, because (1) there were too many people that were too eager and too easily ready to get on a plane and leave their financial obligations behind and (2) in many cases also people use the postdated checks as guarantees so that they have that kind of leverage to be able to encourage somebody to comply with their side of the agreement. We see this a lot in commercial transactions, for example, in trading. If you’re providing goods to someone, you’ve provided the goods, but you still haven’t received the payment. Cheques are often used as guarantees, again, as you said, for reasons for ensuring the parties actually do abide by their obligations or at least as leverage to make sure that parties comply with their obligations. Yes, it’s a tool. It’s a tool that in commercial transactions has worked and worked effectively, but it’s also a tool that needs to be evolved and it has been evolving. The country and its legislative developments have been evolving along with it, such as in the case of bounced cheques, anything below 200,000 dirhams is no longer criminal, whereas before even a 500,000-dirham cheque was considered criminal and the person would then lose the ability to travel and the freedom just because of that cheque.
Tim Elliot: If you consider the way that the U.A.E. has evolved, and this is kind of in the interest of balance really, it is to a great extent, even these days, a transient, as an expatriate, society. You can understand why these cheques and balances, if you like, and these methods have been put into place, why they are employed.
Ludmila Yamalova: After having been in this country for a number of years, yes, I understand it much more so than I did when I came here first because at that time it just seemed a little disproportionate but, having been long enough and seeing the various things that you just mentioned, is that people come and go and often people come here expecting the high life and living large and getting themselves into serious debts and enjoying the luxurious things or parts of life such as buying themselves very expensive cars with car loans and then losing their job shortly thereafter or realizing they cannot afford those obligations, getting on a plane and leaving. There have been way too many examples like that. Presumably, with that in mind, and at least to encourage people to be responsible about their choices in life, in particular about borrowing money and from the local authorities and parties here, that these practices were introduced.
Tim Elliot: Ludmila Yamalova is the Managing Partner of the Dubai-based Yamalova & Plewka. As ever, Ludmila, a huge thank you for your time.
Ludmila Yamalova: Thank you very much to you. As always, an engaging discussion.
Tim Elliot: That’s another edition of Lawgical. For obvious reasons, we just can’t cover every aspect of the U.A.E.’s legal framework in each episode, but if there’s a legal conundrum you’d like answered you can get in touch very easily via Lylawyers.com or via any of our social channels and we’ll try to answer questions in a future episode of Lawgical. If you’d like a legal consultation, Lylawyers.com is the best place to start. Just hit Contact.
