By Olivia Agbajoh
Nigeria is a nation with a fast-growing market that attracts a considerable amount of foreign investment.
However, companies wishing to employ foreign nationals in Nigeria must first obtain the consent of the Director of Immigration, while persons entering into Nigeria for business purposes must obtain the consent of the Minister of Interior in writing.
2.Section 34 of the Immigration Act provides that companies cannot employ a foreign national without the permission of the Director of Immigration, except in cases where the Minister of Interior grants a waiver or exemption by notice.
The different kinds of permits that may be granted upon application are as follows:
A business permit is a permanent authorisation issued to foreign investors wishing to establish a business in Nigeria either as a branch or as a subsidiary, and enables such company to carry out its local operations legally.
Any foreign company wishing to carry on business in Nigeria must first obtain a business permit by applying to the Executive Secretary of the Nigerian Investment and Promotion Commission and gain the consent of the Minister of Interior. In addition, it must register with the Corporate Affairs Commission in Nigeria in compliance with the provisions of the Companies and Allied Matters Act.
2 Section 8(1) Immigration Act Cap 11 Laws of the Federal Republic of Nigeria (‘LFN’) 2004 (‘the Immigration Act’).
3 The Companies and Allied Matters Act LFN 2004.
Nigeria is granted to only joint venture and wholly foreign-owned companies, and that it does not enable holders to seek employment in Nigeria.
Temporary work permit (‘TWP’)
Any company wishing to engage the services of a foreign national for a short term is required to apply to the Comptroller General of Immigration for its approval of the permit; the application must be submitted at the Nigerian embassy where the expatriate resides.
Subject to regularisation visa (‘STR visa’)
This type of visa is issued at the Nigerian Mission upon application and presentation by the employer company of specified documents. Upon approval, the STR visa is issued with a 90-day validity period, and the employer company must, within this 90-day period, submit an application to the Comptroller General of Immigration to regularise the stay of the prospective employee. After the stay of the expatriate has been regularised by the Comptroller General of Immigration, the expatriate will be issued a combined expatriate residence permit and aliens card (‘CERPAC’).
A CERPAC card allows an expatriate to live and work in Nigeria. There are two types:
a. the CERPAC green card, which is issued to Commonwealth indigenes; and
b. the CERPAC alien brown card, which is issued to non-Commonwealth indigenes.
There are three types of forms for different categories of persons that are obtainable at the Nigerian Immigration Service or Afribank Nigeria Plc for applications for a CERPAC:
a. CR (concessionary) forms issued to expatriates who are missionaries, students and non-Economic Community of West African States (‘ECOWAS’) African nationals;
b. AO forms issued to expatriate nationals and persons with special immigration status; and
c. AR forms issued to exempted persons such as diplomats, government officials,
Nigerian spouses and non-governmental organisations.
The expatriate quota is an official permit given to qualified companies. It allows them to employ individual expatriates to occupy specific positions in the company. The permit specifies the duration that is permissible for such employment.
These permits are granted for periods of up to five years, and are subject to renewal upon application by those companies that need to engage the services of a foreign national.
There are two categories of the expatriate quota that may be granted:
a. a permanent until renewed quota is issued for positions that will be occupied permanently (e.g., board of director and managing director positions). A foreign company is consequently able to protect its investment with the grant of this type of quota; and
b. a temporary quota is issued for positions that will be occupied temporarily.
Where a company encounters difficulty filling a quota position or promoting an expatriate, it may apply to the Internal Affairs Minister for a re-designation of quota.
A company may apply for a restoration of quota when it has failed to utilise its quota positions. In order for a company to successfully apply for this restoration, it must first present good reasons for its failure to utilise its quota position.
The Nigerian Immigration Service also utilises three distinct mechanisms in carrying out its operations:
a. inspectorate visits to companies in order to establish whether expatriates are in fact transferring their relevant skills to local employees, if this is the primary purpose of their employment;
b. investigation of breaches4 (i.e., by verifying the veracity of any adverse intelligence report received against any expatriate); and
c. enforcement of appropriate penalties where breaches have been established.
4. Such as companies bringing in foreigners to work in Nigeria on visiting visas, then paying someone in the Nigerian Immigration Service to protect these workers, who are working illegally in Nigeria.
One specific investigation involved a Chinese syndicate specialised in forging Nigerian
immigration documents. The syndicate was apprehended by immigration officials in 2010, and the syndicate members were arrested by the police.
Despite their forgery activity, which is a serious criminal offence under Nigeria’s criminal laws, the only punishment the Chinese parties involved in the syndicate received was deportation. It should be noted that the same Chinese citizens can easily change their passports and return to Nigeria again. It seems certain that, if a Nigerian had committed the same or a similar offence in China, he or she would have been sentenced to serve a jail term.