INTRODUCTION
Nigeria is an emerging market with a number of companies with foreign interests
either entering in to joint ventures with Nigerian companies or as wholly owned
foreign companies. Often times, there is need for the engagement of specialized
expatriate personnel to undertake assignments in various fields especially in
technical services. Hence, companies source for expatriates who possess the
requisite expertise to carry out these services or carry out intra-company transfer of
employees from other countries.
This article seeks to highlight the various compliance issues that we encounter on a
regular basis and the steps to ensure compliance with regulatory provisions.
BUSINESS VISA HOLDERS SEEKING EMPLOYMENT IN NIGERIA
A business visa ordinarily enables investors, businessmen, to attend meetings,
workshops or seminar in Nigeria for short periods and further enables those who
have the intention of establishing a business to do so. It is instructive to note that a
business visa does not allow the holder to seek employment.
The Immigration Act provides that companies cannot employ a foreign national
without the permission of the Director of Immigration except the Minister of Interior
grants a waiver/exemption by notice.
We have recently discovered that some companies are not aware of the need to
apply for an expatriate quota for long term work authorization or to seek the
permission of the Immigration Service to apply for a Temporary Work permit (TWP)
for short term work authorization. The companies employ foreign nationals that
arrive in Nigeria with visitors or business visas. It is paramount that the H.R confirm the
immigration status of expatriate employees and take steps to regularize their
immigration status.
ILLEGAL EMPLOYMENT OF EXPAT EMPLOYEE
All over the world strict compliance to immigration regulations is taking centre stage
and Nigeria is not an exception. Companies desirous of employing foreign nationals
in Nigeria must first seek and obtain the consent in writing of the Director of
Immigration while persons entering Nigeria for business purposes must obtain the
consent of the Minister of Interior in writing.
The employer company is responsible for the application and would be held liable for failure to obtain consent.
It has also become prevalent that immigration officials carry out unscheduled site
visits to companies that employ foreign nationals, though the Immigration Act is
silent as to on-site inspection, in practice there are departments created within the
immigration service responsible for investigation if the need arises. It is therefore
advised that the H.R team must have copies of their expatriate employee’s work
permits and passport pages.
BACKGROUND CHECK OF EMPLOYEES QUALIFICATION
There is a need for background checks of documents (diplomas, degrees, and
professional qualification) of prospective expatriate employees by Employer
Company. It is not unusual that employees’ present fake documents, it is the responsibility of
the company to conduct a preliminary verification of credentials and documents
before the documents are submitted to the Immigration service, this will save the
companies from any undue embarrassment.
JOB DESIGNATIONS FOR TEMPORARY WORK PERMIT HOLDERS
Companies that intend to engage the services of expatriates for short term
assignments are required to apply to the Comptroller General of Immigration for a
Temporary Work Permit (TWP). It is pertinent to note that TWP holders are not entitled
to job designations. The job designations connote an intention to keep the expat
employee on a long term basis and would definitely raise a red flag with the
Immigration Service.
EXPIRATION OF EXPATRIATE QUOTA
An expatriate quota is a permit issued by the Federal Ministry of Interior which allows
a company registered in Nigeria to employ foreign nationals. The Expatriate quota is
granted for a period ranging between 2/3 years at the discretion of the Minister of
the Interior and subject to renewal upon expiry.
We have discovered that a number of companies do not keep track of the
expatriate quota’s expiry date. On the expiration of the expat quota, the foreign nationals do not have a basis of employment in Nigeria and this may jeopardize the company’s operations. It is advisable that the company has a proper monitoring system that ensures that the expatriate quota renewal commences before the
substantive expatriate quota expires.
NIGERIAN UNDERSTUDIES
To further protect local content/workers, it is advisable that companies advertise
employment vacancies and also interview for positions in their organizations before
seeking expat workers. It is also pertinent to state that companies must ensure that foreign national
employees have Nigerians understudies. The details of the Nigerian understudy must
reflect in the monthly expatriate quota returns filed with the immigration authorities.
All relevant information must be disclosed by the company to the immigration
authorities and where an expat is desirous of working in Nigeria there must be
evidence of work experience to fill any vacant position on the expatriate quota.
The expertise of the expat must not be in question.
It is instructive to note that where foreign national has been convicted for
deportation, the employer company shall pay the expenses incidental to the
voyage from Nigeria of the Person to be deported and his dependants (if any) and
maintenance of such person and his dependents.
The Immigration Act further states that it shall be an offence for any employer of
persons liable to repatriation to discharge any such persons without giving notice to the Director of Immigration, where this happens the business of the employer may be wound up subject to the provisions of the immigration Act.
CONCLUSION
It is quite unfortunate that the immigration lawyer is always called upon after the
fact (the arrest, detention for deportation of the foreign national employee) It is
advisable that companies seek the counsel of an immigration lawyer every step of
the way especially on issues of compliance with the relevant Immigration laws and
regulations in place, Human resource experts rarely ever do this, when a company
intends to employ an expat, The Immigration Lawyer can always guide the Human
resource department of companies to avoid the pitfalls of our Immigration laws and
regulations. It should be noted that this article is for general information only. It is not offered as
advice, on any particular matter, whether legal procedural or otherwise. If you have
any questions about this article, please contact the author.
Author
Kunle Obebe
Bloomfield- Advocates & Solicitors
200 Muritala Mohammed Road,
Yaba, Lagos,
Nigeria
Tel: +234 1 738 8369, +234 1 7910702
Fax: +234 1 4960 466
Email: kunleobebe@bloomfield-law.com
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