Thanks to some friendly sources, I was able to review the ASEAN Agreement on the Movement of Natural Persons (MNP). This agreement was approved by the ASEAN Economic Ministers’ (AEM)Meeting last month in Cambodia. The most important point about the MNP Agreement is that it only deals with the temporary movement of persons pursuant to mode 4 of the ASEAN Framework Agreement on Services (AFAS). Mode 4 allows for ASEAN companies to send their personnel temporarily to other countries to provide services. The MNP Agreement is specifically limited to business visitors, contractual service suppliers, and intra-company transferees. Hence it covers skilled workers, professionals and executives, and only for their temporary entry. The MNP Agreement does not allow for permanent entry by such persons, nor does it allow for movement of all persons (e.g., unskilled labor) even on a temporary basis.
The MNP Agreement will be signed by ASEAN leaders at the Summit in November, but I provide a quick preview of the agreement in this post.
The Preamble specifically refers to AFAS.
Article 1 sets out the objectives of the MNP agreement, to allow for the Mode 4 movement pursuant to the AFAS.
Article 2 sets out the scope of the agreement, namely business visitors, intracorporate transferees, and contractual service suppliers. The MNP agreement does not apply to employment measures, permanent residency or citizenship. Nor does it limit the application of visa requirements or other measures to maintain the national integrity of borders.
Article 3 sets out definitions:
(a) Business Visitor means a natural person seeking to enter or stay in the territory of another Member State temporarily, whose remuneration and financial support for the duration of the visit is derived from outside of that other Member State;
(i) as a representative of a goods seller/service supplier, for the purpose of negotiating the sale of goods or supply of services or entering into agreements to sell goods or supply services for that goods seller/service supplier, where such negotiations do not involve direct sale of goods or supply of services to the general public;
(ii) as an employee of a juridical person as defined in subparagraphs e(i), e(ii) and e(iii) of this Article only for the purpose of establishing an investment or setting up a commercial presence, for the juridical person in the territory of another Member State;
(iii) for the purpose of participating in business negotiations or meetings; or
(iv) for the purpose of establishing an investment or setting up a commercial presence in the territory of another Member State;
(b) Contractual Service Supplier means a natural person who is an employee of a juridical person established in the territory of a Member State which has no commercial presence in the territory of the other Member State where the services will be provided, who:
(i) enters the territory of that other Member State temporarily in order to supply a service pursuant to a contract(s) between his/her employer and service consumer(s) in the territory of the other Member State;
(ii) is either an executive, manager, or specialist as defined in subparagraph e(i), e(ii) and e(iii) of this Article, who receives remuneration from his/her employer;
(iii) must possess the appropriate educational and professional qualifications relevant to the service to be provided; and
(iv) as may be applicable, has been an employee of the juridical person for a period as may be specified in the Schedule of Commitments;
(c) Intra–Corporate Transferee (ICT) means a natural person who is an employee of a juridical person established in the territory of a Member State, who is transferred temporarily for the supply of a service through commercial presence (either through a representative office, branch, subsidiary or affiliate) in the territory of another Member State, and who has been an employee of the juridical person for a period as may be specified in the Schedule of Commitments , and who is:
(i) an Executive: a natural person within the organisation who primarily directs the management of the organisation and exercises wide latitude in decision making and receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the business; an executive would not directly perform tasks related to the actual provision of the service or services of the organisation;
(ii) a Manager: a natural person within the organisation who primarily directs the organisation/department/subdivision and exercises supervisory and control functions over other supervisory, managerial or professional staff; does not include first line supervisors unless employees supervised are professionals; does not include employees who primarily perform tasks necessary for the provision of the service; or
(iii) a Specialist: a natural person within the organisation who possesses knowledge at an advanced level of expertise essential to the establishment/provision of the service and/or possesses proprietary knowledge of the organisation’s service, research equipment, techniques or management; may include, but is not limited to, members of a licensed profession;
Article 4 sets out the general obligation of Member States to provide for temporary entry or temporary stay to qualifying persons.
Article 5 requires Member States to process applications within a reasonable time.
Article 6 sets out each Member State’s national commitments to provide temporary entry or temporary stay for qualifying persons.
Article 7 provides for further negotiations for liberalization of the national commitments.
Article 8 provides transparency requirements, including publishing immigration requirements on the Internet.
Article 9 provides for general exceptions for public order; human, animal or plant life or health; and compliance with laws or regulations on fraud, privacy and safety.
Article 10 provides for security exceptions in times of war or emergency, mito comply with military needs or the UN Charter.
Article 11 provides that disputes can be raised through the Enhanced Dispute Settlement Mechanism (EDSM), provided that the individuals affected have exhausted all domestic remedies and the matter involves a pattern of practice, not a an individual matter. Also remember that the EDSM can only be invoked by a government and not a person.
Article 12 establishes that the MNP Agreement is the sole governing agreement for movement of natural persons, even if legal commitments under the ASEAN Comprehensive Investment Agreement (ACIA) are involved.
Article 13 provides for mutual recognition of qualifications or licenses.
Article 14 provides that the AEM and ASEAN Coordinating Committee on Services shall administer the agreement.
Article 15 provides for revisions, modifications and amendments.
Article 16 provides for the entry into force within 180 days after signing of the agreement.
Article 17 provides for the deposit of the MNP Agreement with the ASEAN Secretary General.