PREVIEW
This August edition of Akintunde Esan’s Legal Illumination
- with its typical blending of the academic, practice and street
understanding of the law marshalled with surgical legal intelligence -
is focused on illuminating on the basic regulatory requirements for
expatriate professionals, employees and consultants who wish to stay in
Nigeria on a temporary long term or short term basis for the purpose of
providing specialised, professional or technical services to Companies
or registered business entities in Nigerian as well as the basic
preconditions for foreign investors and entrepreneurs to invest in
Nigerian companies/businesses or to establish their own
Companies/businesses in Nigeria.
PART A
1. RELEVANT IMMIGRATION REGULATORY MDAs
a) Ministry of Interior (MOT)
b) Nigerian Immigration Service (NIS)
c) Corporate Affairs Commission (CAC)
d) Nigerian Investment Promotion Commission (NIPC)
e) National Office for Technology Acquisition and Promotion (NOTAP)
f) Securities and Exchange Commission (SEC)
2. PRIMARY IMMIGRATION REGULATORY MDAs AND LAWS
a) Immigration Act,2015
The Immigration Act, 2015 (“Immigration Act”) replaced the old Immigration Act of 1963 and the Passport (Miscellaneous Provision) Act on the 25th May 2015. It regulates the issuance of travel document in and out of Nigeria.
b) Nigerian Immigration Service
The Immigration Act established the Nigerian Immigration Service (NIS) and makes it primarily responsible for the:
i. issuance of travel documents within and outside Nigeria
ii. issuance of Resident Permits to foreigners in Nigeria
iii. control of persons entering and leaving Nigeria
c) The Ministry of Interior
The
Ministry is the Ministry with responsibility for immigration in
Nigeria. The Immigration Act empowers the Minister in charge of the
Ministry to make regulations necessary for the implementation of the
Act.
d) Immigration Regulations,2017
Nigeria’s Minister of Interior in exercise of the powers conferred on him by Section 112(1) of the Nigerian Immigration Act 2015, launched the new Immigration Regulations 2017 (the Regulation) on 20 March 2017[1] with the objective to create the legal framework for the implementation of the Immigration Act, consolidated existing immigration regulations
and to fast-track the ease of doing business in Nigeria pursuant to
Presidential Executive Order on the ease of doing business in Nigeria.
e) National Office for Technology Acquisition and Promotion Act
Requires
that Agreements involving transfer of foreign technology which involves
technical expertise to Nigerian partners to be registered with the National Office for Technology Acquisition and Promotion (NOTAP)
from the date of execution or conclusion of the Agreement. Registration
is necessary for the direct transfer of fees or payment due under the
Agreement to the Bank accounts of the expatriates outside Nigeria.
f) Nigerian Investment Promotion Commission Act
Requires that any business with foreign shareholders must be registered with the Nigerian Investment Promotion Commission (NIPC) before commencement of the business.
g) Companies and Allied Matters Act
Requires the incorporation of companies and registration of business names in Nigeria with the Corporate Affairs Commission (CAC) before they can be recognised as a legal corporate business entity.
h) Investments and Securities Act (ISA)
The Act requires the Securities and Exchange Commission (SEC) to keep and maintain registers of Foreign Direct Investments (FDI) and Foreign Portfolio Investments (FPI) in Nigeria.
PART B
1. TRAVEL DOCUMENT
Under
the Immigration Act, it is illegal for a person who is not a Nigerian
citizen to visit, stay, work or does business in Nigeria without the
required travel documents. In order for a
non-Nigerian/alien/foreigner/expatriate/immigrant to legally visit,
stay, work or does business in Nigeria such a person is not only
required to apply for the necessary Visa to visit Nigeria, but also,
required to apply to the relevant Immigration regulatory Ministries,
Departments and Agencies (MDAs) of the Nigerian Government for the
Permits to stay, work or do business/invest in Nigeria.
Travel
document for entry into Nigeria includes in any proper case a visa and
employment papers and international certificates of health valid for
such entry and where a citizen of Nigeria is departing including any
visa, employment papers and international certificates of health valid
for entry into or travel through any other country as the case may
require[2].
2. VISA
Any
Expatriate who has been offered an employment in Nigeria or has been
contracted to provide services in Nigeria must first obtain a Nigeria
Visa, except expatriates who are ECOWAS Nationals or Nationals of countries which Nigeria has entered into Visa Abolition Agreements. A Visa is defined under the 2017 Nigerian Immigration Act[3] as:
“an impress, vignette or endorsement on a travel document purporting to be signed and dated by an officer appointed for that purpose by or on behalf of the government of Nigeria and authorising entry into or transit across Nigeria subject to compliance with any special requirement prescribed by the Immigration Authorities at a port of entry and valid for specified time and for the number of journeys stated therein”[4]
Application for visa is required to be made to the Comptroller-General of Immigration
(CGI) who is the one the Act vests with the power to issue Nigerian
visa via the appropriate Nigerian Diplomatic Mission established abroad
usually Nigerian High Commission or Embassy in countries where the
Applicant is a citizen or has legal residence.
The Immigration Attache
in the Mission issues the Visa and where an Immigration Attache is not
available, the duty shall be performed by any other Officer designated for
the purpose by the Head of Mission[5].
3. TYPES OF VISAS
The
type of visas usually issued to an expatriate depends on whether the
purpose of visit is for transit, family visitation, social engagement,
business, tourism, meeting, conference, humanitarian services; a short
term contract/employment or long term contract/employment. The Visas
usually issued are:
a) Transit Visa:
This
is the Visa issued to expatriate wishing to use Nigeria as transit
route for onward destination to another country. It is valid for 48 hours if obtained on arrival, however it will be valid for 7 days, if obtained at the Nigerian Mission and could be extended for a further period of 14 days from the original date of entry.
b) Tourist/Visiting Visa
This
visa is issued to expatriates who wish to visit Nigeria for the
purposes of tourism as well as those who wish to visit family and
friends. Valid for 90 days.
c) Business Visa
This
is the required for expatriates who wish to visit Nigeria for the
purpose of attending seminars, conferences, musical concerts, meetings,
job interviews, Researchers, training of Nigerians, trade fairs,
contract negotiations, crew members, humanitarian services, staff of
NGOs and INGOs, sales, marketing, purchase or distribution of Nigerian
goods. It is valid for 90 days.
d) Subject to Regularization (STR) Visa
Expatriates
that are seeking to enter Nigeria for the purpose of taking long term
employment must enter the country on Subject to Regularisation (STR)
Visas. The STR Visa is a single entry visa that is valid for 90 days and
grants expatriates entry into Nigeria for the purpose of regularising
their status as a resident in Nigeria. The regularisation process
involves the issuance of CERPACs and re-entry visas to accompanying
spouses and dependents Re-entry Visa.
e) Diplomatic Visa
This
visa is issued “gratis” at Nigeria’s Mission abroad to visiting Heads
of States and their families, accredited Diplomats and their families,
top Government officials and their families and the holders of the
Diplomatic Passport or Laisser Passez of United Nations or international
agencies. A Diplomatic Visa is valid for 90 days.
f) Visa on Arrival (VOA)
The
Comptroller-General of Immigration (CGI) is vested with the power to
authorise the issuance of Short Visit Visas at the port of entry to
frequent travel business persons of international repute, executive
directors of multinational companies, members of government delegations,
holders of United Nations Laissez-passer, Africa Union Laissez-passer,
Economic Community of West African States Laissez passer, and holders of
any other official travel documents of other recognized international
organisations, who are on short visits to Nigeria[6].
The Executive Order on Ease of Doing Business signed by the Acting President Professor Yemi Osinbajo, SAN on 18th May, 2017[7] states that:
“Visas on arrival shall be granted at all Nigerian ports of entry once applicants have met all the published requirements.”
This
has made the issuance of visa on arrival to be been extended to
business travellers who may not be able to obtain a consular business
visa because Nigeria does not have a consulate in their home country, or
due to the exigencies of urgent business travel.
Thus,
under 2017 new Immigration Regime the CGI may approve the issuance of a
Visa on Arrival at the port of entry in Nigeria in respect of any
person. Applicants are however advised not to proceed to Nigeria until
receipt of Visa on Arrival Approval Letter.
g) Re-entry Visa
Prior to 11 February, 2015 holders
of resident status in Nigeria when proceeding on leave or temporary
duty outside Nigeria were required to apply for re-entry permit/visa
prior to their departure from Nigeria. The date endorsed in the passport
was the effective date for re-entry purposes and not the date on the
Combined Expatriate Resident Permit and Alien Card (“CERPAC”) temporary
receipt. Under the 2017 immigration legal regime expatriates with valid
Resident Permits are no longer required to apply for Re-entry
Permit/Visa.
PART C
1. PERMIT
There
is no gainsaying the fact that, while the visas mentioned above can
also be called entry permit which serve the purpose of granting
expatriates admittance into Nigeria, they do not automatically confer
the right to stay, work or do business in Nigeria to them. It is
required that expatriates apply for and obtain the required Permits to
stay, work or do business in Nigeria.
It
appears that there two kinds of Permits under the Nigerian Immigration
Legal Policy, while the first category grants the right to reside and
work in Nigeria the other serves an Entry Permit as well the Permit to
reside and work in Nigeria, this is not an issue as the Immigration Act
has defined a “Permit” to includes pass.
2. RESIDENCE PERMIT
Residence Permits are obtained from the Nigerian Immigration Service. Residence Permit under Nigerian Immigration Act, 2017 is:
“a document that allows a non-Nigerian to reside in Nigeria and carry out an approved activity as specified in the document, or to a company, resident or citizen of Nigeria as a dependant”.
a) Regularisation of Stay
Every expatriate with a Tourist/Visiting Visa may enter Nigeria and stay in Nigeria for a maximum period of 90 days without a Residence Permit.
However, to stay further for purpose of residence the expatriate must
regularise his or her stay by applying for and obtaining a Residence
Permit which has a maximum validity period of two (2) years.
Apart
from granting the right to stay in Nigeria, foreign nationals resident
in Nigeria need the Residence Permit before they can form a company[8]. It should be noted however that, the validity of the Residence Permit is subject to the validity of the expatriate quota.
It should be noted that, while expatriates awaiting regularization are entitled to be allowed re-entry within ninety (90) days from the date of endorsement of “Awaiting Regularization” (AR) on their international passports, an expatriate with a valid Residence Permit does not need to apply for Re-entry Visa into Nigeria, when they travel out of Nigeria by virtue of a circular on the abolition of re-entry visas on 11 February, 2015. They are entitled to re-enter Nigeria at any time within the validity of their CERPAC Cards.
The 2017 Immigration Regulations[9] provides for issuance of Residence Permits to all expatriates (male or female) married to Nigerians.
b) ECOWAS Residence Card
Though, expatriates who are ECOWAS Nationals or Nationals of countries which Nigeria has entered into Visa Abolition Agreements are
not required to apply for a visa to gain entry into Nigeria, however,
this right of entry is for only 90 days, they are required by the Immigration Regulations, 2017 to apply for and obtained ECOWAS Residence Card to be legally resident in Nigeria and to register with the Nigeria Immigration Service before taking up employment.
The ECOWAS Residence Card is valid for 2 years from the date of issuance.
c) Permanent Residence Permit (Investment Visa)
The
Comptroller General of Immigration may authorise the issuance of
Permanent Residence Permit to foreign national who are married to
Nigerians, or who are investors who have imported an annual minimum
threshold of capital over a period of time as may specified from time to
time in the National Visa Policy or any other such policy. This is not
dependent on expatriate quota like the temporary Resident Permit.
However,
it should be noted that, the Resident Permit can be withdrawn whenever
the investor withdraws his investment or fails to comply with any other
condition that may have been prescribed for the issuance of the Permit[10].
d) Spousal Resident Permits
The
Regulations introduce a spousal residence permit for foreign nationals
married to Nigeria nationals. The permit is issued irrespective of the
entry visa and serves as a multiple entry visa.
3. WORK PERMIT
Work
permit is defined by the Immigration Act as “a document that allows a
non-Nigerian expert to reside and work in Nigeria for a specified period
of time”.
a) Temporary Work Permit (TWP) Visa
“Experts
invited by Corporate Bodies to provide specialized skilled services,
such as after sales Installation
/Commissioning/Upgrading/Maintenance/Repairs of equipment and machinery,
Training /capacity building for Nigerian staff, Audit of machinery/
equipment and financial records”[11]
The TWP is a single-entry work Visa authorization valid for two (2) to three (3) months subject to the discretion of the CGI. It is important to note that the TWP may be extended for another thirty (30) days.
Though,
the validity of the Residence Permit is subject to the validity of the
expatriate quota, the 2017 Regulation allows the issuance of the TWP
outside the expatriate quota provision.
b) Combined Expatriate Residence Permit and Aliens Card (CERPAC)
The introduction of the Combined Expatriate Residence Permit and Alien Card (CERPAC) in in 2001 makes it unnecessary to make a separate application for Work Permit and Residence Permit.
The CERPAC Card
which is valid for two (2) years after which, application for
revalidation must be made is compulsory for expatriates resident or
working in Nigeria for more than 56 days with exception of ECOWAS
citizens and accredited diplomats and children below 15 years.
The CERPAC Card is evidence of legal residence in Nigeria and it would be required to open a bank account with a Nigerian bank.
The CERPAC form
as endorsed is valid for three (3) months from the date of purchase.
Exempted Persons like Diplomats, Government Officials, Niger-wives,
NonGovernmental Organization (NGO’s) are to be issued CERPAC Cards
Gratis.
c) Types of CERPAC Card
There are two types of CERPAC Cards, which the Green and the Brown Cards
(i) The CERPAC Green Card
The CERPAC Green Card
is a bonafide document that allows a non-Nigerian to reside in Nigeria
and carry out an approved activity as specified in the permit, or to
accompany a resident or citizen of Nigeria as a dependant. Possession of
a valid CERPAC Green Card does not exempt the holder from having a valid entry or re-entry permit/visa.
Holders
of resident status in Nigeria who are proceeding on leave or temporary
duty outside Nigeria should apply for re-entry permit/visa prior to
their departure from Nigeria.
(ii) The CERPAC Brown Card
Every Alien resident in Nigeria or visiting with the intention to remain in Nigeria in excess of 56 days and crew members leaving their ship and staying ashore in excess of 28 days are required by law to register. Unlike the CERPAC Green Card, the Brown Card is, essentially, a movement chart.
PART D
1. BUSINESS PERMIT/ EXPATRIATE QUOTA
Apart
from businesses involving the production of arms, narcotics and related
substances which are prohibited to Nigerians and Foreign Investors
alike, foreign nationals may undertake any type of business in Nigeria
in joint venture with Nigerians by means of a company registered by the
Corporate Affairs Commission (CAC) or by owning hundred percent equity
in the company.
However, before the commencement of the business or trade or profession registered with CAC, the 2017 Nigerian Immigration Regulation[12]
requires that the approval of the Minister of Interior must be obtained
in writing. This written authorisation is required to be given in the
form of a Business Permit or an Expatriate Quota or both.
The application for Business Permit or an Expatriate Quota are to be made to the Minister of Interior on Form T/1 designed for that purpose.
a) Business Permit
Foreign
nationals not resident in Nigeria do not require permits before
establishing business or investing in Nigeria. However, foreign
nationals resident in the country need Residence Permit before forming a
company while Business Permit is required for the business to commence[13].
Having a Business Permit does not give any right or entitlement to the
holder to enter or remain in Nigeria without a valid Residence Permit or
Visa.
The
issuance of Business Permit is subject to any condition(s) that the
Minister of Interior may choose to impose. The Minister can, therefore,
revoke, vary or cancel a Business permit, if the stipulated conditions
are not met. Also, the Minister or the Comptroller General is required
to be notified within 21 days of any change of name, nature or address
of a business or trade.
b) Expatriate Quotas
Where
a Company intends to employ the services of
non-Nigerians/aliens/foreigner workers/expatriates/immigrants, who then
obtain Residence Permit to reside in Nigeria, such a Company is required
to apply and obtain Expatriate Quota. It is the duty of the company to apply for the Quota not that of the employee[14]
The
Regulations also impose a duty on corporate entities that employ
expatriates to ensure that they obtain an Expatriate Quota or Business
Permit.
c) Stay of Action
When an Expatriate Quota has expired in the course of applying for renewal, a company may apply for a stay of action allowing the foreign worker to remain in Nigeria and work permit extended.
d) Duplicity
There appears to be requirements on Business Permit and Expatriate Quota in the Nigerian Investment and Promotion Commission (NIPC) Act
to the effect that any business with foreign shareholding must register
with the Commission. This appears to be duplicity in the regularisation
process. Even if, we assume that, the Ministry of Interior approves
while NIPC merely registers.
PART E
1. Certificate of Registration
Expatriates
are required to register and to obtain a certificate of registration at
the Nigeria Immigration Service in their State of residence and they
are further required to carry it with them at all times.
2. Notification of Change in Particulars
Expatriates
are also required to notify the Nigeria Immigration Service of any
changes within seven days; relevant changes include changes to their
registration details, moving addresses within a state, moving from one
state to another, or temporarily leaving one’s residence for more than
seven days.
3. Register of Foreign Nationals
Hotel
and property owners and managers leasing to foreign nationals are also
be required to keep a register of their foreign nationals that will be
subject to inspection at any time by immigration inspectors. The
register must contain the foreign national’s full name, last address,
occupation and profession, nationality and passport number, dates of
arrival and departure, destination, and the foreign national’s
signature.
4. Acceptance of Immigration Responsibility
An
expatriate or immigrant may be permitted by an Immigration Officer to
enter or remain in Nigeria upon the immigrant or some other person on
his behalf accepting full immigration responsibilities. Usually, it is
the expatriate employer that is required to bear “immigration
responsibility” of the employee which includes but not limited to:
- Accommodation/feeding
- Transportation
- and if need be the cost of repatriation or deportation
PART F
1. PENALTIES FOR DEFAULT
a) Failure to renew Visa, Business Permit or Temporary Work Permit and Resident Permit
Expatriates
who fail to regularise their stay within three (3) months; or renew
Visa, Business Permit or Temporary Work Permit and Resident Permit
within thirty days (30) before expiration shall be liable upon
conviction to a term of three (3) years imprisonment or a fine of five
hundred thousand naira (N500,000) or both[15].
b) Failure of a Company to renew the Expatriate Quota or render its Expatriate Monthly Returns
Where
a company fails to renew the expatriate quota or render its expatriate
monthly returns, the corporation will be liable to a fine of Three
Million Naira (N3, 000,000).
c) Failure to employ Nigerians to understudy a Foreign Employee
A
corporate entity that fails to employ Nigerians to understudy a foreign
employee, or allows another body corporate to utilise its expatriate
quota positions is liable to a fine of Three Million Naira (N3, 000,000)
for each month the foreigner has been in office without a Nigerian
understudy[16].
d) Discharge of Employee or Re-designation, or change of Employment, without the Approval
It
is an offence under the Act for any employer of persons liable to
repatriation to discharge any such persons without giving notice to the
Comptroller-General of Immigration, or for any such employed person to
be re-designated, or change his employment, without the approval of the
Comptroller-General of Immigration, and upon conviction, the employer if
not a citizen of Nigeria and the employed person, as the case may be
and his dependants shall, if the Minister thinks fit, be deported and the
business of the employer be wound as described by Act[17].
e) Violation of the Immigration Act , Immigration Regulations or other Relevant Laws
Company
directors and secretaries who are found to have been negligent or
complacent in the violation of the Regulations, the Immigration Act or
other relevant laws may upon conviction be liable to a term of three (3)
years imprisonment or to a fine of Two Million Naira (N2,000,000) or
both. Where a company is convicted for an offence under the Regulations,
the Court may impose a fine of Five Million Naira (N5, 000,000) as well
as issue an Order to wind-up the company.
CONCLUSION
The
focus of the next edition on Immigration Law will be on the necessary
documents required to accompany the applications for Visas and Permits
illuminated on in this edition.
For
more illumination and assistance on how
non-Nigerians/aliens/foreigners/expatriates/immigrants can legally
visit, stay, work or do business in Nigeria as well as the documentation
involved, you are advised to contact Akintunde Esan or Ase Olodumare Chambers via the contacts on this Blog.
[1] However, the Regulations became effective from 27 February, 2017.
[2] Section 116 Immigration Act,2017
[3] Section 116 Immigration Act,2017
[4] A visa can also take the form of a separate document or an electronic printout.
[5] Section 20 Immigration Act,2017
[6] Section 20(7) Immigration Act,2017; Regulations 9 and 20(7)
[7] Paragraph 16
[8] http://new.cac.gov.ng/home/services
[9] Paragraph 14
[10] Section 37 (11) Immigration Act,2017
[11] NIS
[12] Regulation 12 (1)
[13] http://new.cac.gov.ng/home/services
[14]Immigration Regulation
[15] Section 57 Immigration Act,2017
[16] Regulation 52,
[17] Section 58 Immigration Act,2017
HOW FOREIGNERS CAN LEGALLY WORK OR DO BUSINESS IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)
