I INTRODUCTION TO THE IMMIGRATION FRAMEWORK

i Legislation and policy
Applicable legislation

Nigerian immigration law is derived principally from statute and policy and the central pieces of legislation governing immigration law and practice are the Immigration Act of 2015 (the Act or the 2015 Act), and the recently issued Immigration Regulations of 2017 (The Regulations).

The Act, which sets out the provisions for matters relating to immigration, passports, visas and resident permits,2 was enacted by the National Assembly of the Federal Republic of Nigeria and signed into law in May 2015; it repealed the long-standing Immigration Act of 1963 (the 1963 Act),3 which was considered obsolete, in light of modern migration patterns. The new Act is intended to ensure that Nigerian immigration laws and policies adequately reflect modern migration management and conforms with international best practices.

The Regulations were issued pursuant to Section 112(1) of the Act4 in March 2017, and are intended to provide the legal framework for the effective implementation of the Act, as well as to consolidate existing Immigration Regulations in the country.5

Administration of the Act

A key element of the Act is the formal designation of the Nigeria Immigration Service (NIS) as the primary body charged with responsibility for administering the Act, and the provisions of both the Act and the Regulations, provide greater clarity regarding the structure and composition of the NIS, as well as the duties of its officers.6

Categories of visas and permits available

Both the Act and the Regulations provide for the issuance by immigration authorities of various types of visas and permits for entry and residence in Nigeria by non-Nigerian citizens. Applications for visas and most permits are to be made to the CGI7or to the appropriate Nigerian diplomatic mission established abroad.8 The categories of visas and permits that are available under Nigerian immigration law are as follows:

  • a transit visas and direct transit visas (airside);
  • b tourist visas;
  • c official or diplomatic visas;
  • d short visit visas:

• business visa; and

• visa on arrival;

  • e temporary work permits;
  • f residence visas/subject to regularisation visas; and
  • g residence permits.

Further details of some of the categories of visa and permits available are provided in the table below:

Purpose of application

Duration/term

Available visa/permit

Applicable provisions

Business purposes – both short term, and long term for the establishment of a business or trade

Short term – duration of up to 90 days

Business visa/visa on arrival

Sections 20(7) and 37(9) Regulation 9.

Long term

Business permit, expatriate quota approval (EQA)

Section 36(1)(b) of the Act.

Regulations 4 and 12, and Schedule 1 of the Regulations.

Employment in the private sector

Short term

Temporary work permit

Section 37(8) of the Act. Regulation 8.

Long term – duration of up to two years; renewable.

Temporary residence visa/subject to regularisation visa

Residence permit

Sections 20, 36(1)(a) and (2) and Section 37 of the Act, Regulation 12 and Regulation 5.

Depending on the industry sector, other guidelines and conditions will also apply.

Residence

Long term

Permanent residence visa/permit

Section 37(11) of the Act and Regulations 5(7).

Tourism

Short term – duration not exceeding 90 days

Visiting visa/permit

Section 20 of the Act and Regulation 6.

Transit

Short-term initial period of seven days unless period extended

Transit visa/permit

Section 20(3) of the Act and Regulations 2, 7, and 20.

Prerequisites for entry

Section 18 of the Act stipulates that an immigration officer shall, unless the Minister of Interior (the Minister) or the CGI otherwise directs, admit into Nigeria a person who:

  • a has in their possession a valid passport or such other travel document as is approved by the Minister or CGI for admission into Nigeria; or
  • b is in possession of a valid visa, residence or work permit, or any other permit, or other form of approval.

An individual who has the requisite documents needed for entry into Nigeria should therefore be ordinarily admitted into the country. Entry can, however, be denied to a foreign national by the immigration officer in the following circumstances: where the requisite visa or permit needed for entry or admission has not been validly obtained;9 where, on the advice of a medical inspector, it is undesirable for medical reasons to admit such a person;10 or where the national seeking entry is classified as a prohibited immigrant.11 Entry can also be validly denied to those considered to be a risk to public health, public interest or national security12 and those who should not be admitted into Nigeria on any other ground as may be prescribed from time to time by the Minister or the CGI.13

Penalties for non-compliance and jurisdiction to hear immigration matters

Various offences are prescribed for non-compliance by individuals and corporations under the Act and Regulations,14 and stringent penalties – ranging from administrative fines to imprisonment and deportation – have been put in place to curb breaches of the law. Penalties include a fine of 5 million naira, as well as the potential winding up of a company, for an offending body corporate,15 a fine of 1 million naira or potential deportation as the penalty for non-compliance with provisions relating to entry for business purposes for individuals,16 and the assignment of criminal responsibility to airline operators and commercial carriers for facilitating an immigration offence.17 Some of the offences and penalties stipulated in Sections 56 and 57 of the Act, and included in Part VII of the Regulations (Regulations 52(6), 52(7) and 53) are detailed in the table below:

Commission of offence by expatriate

Details

Penalty

Non completion of regularisation of stay by expatriate

Failure to complete within the stipulated three-month period

Liable to imprisonment for a term of three years, a fine of 500,000 naira, or both

Non-renewal of residence permit by expatriate

Failure to renew 30 days after expiry

Non-renewal of other visas and or permits by expatriate

Failure to renew 30 days after expiry

Submission of false return, statement, or representation to an immigration officer

Requirement that offender knows it to be false or does not believe it to be true

Liable to imprisonment for a term of five years, a fine of 1 million naira, or both

Failure of a corporate entity to renew its expatriate quota or render its expatriate monthly returns1

Failure to renew expatriate quota within stipulated time

Liable to a fine of 3 million naira

Failure to engage Nigerian employees to understudy expatriate employees

Refusal to employ Nigerians to understudy expatriate employees as required

Liable to a fine of 3 million naira) for each month that a position is occupied by an expatriate without such understudy.

Contravention of, or failure to comply with Regulation provisions, conditions, or directive or instruction pursuant to Regulations.

In respect of the provisions of the Regulations, conditions set out for grant of any visa or permit, or any directive or instruction given pursuant to the Regulations.

Liable to administrative fine or penalty not exceeding 1 million naira, subject to the approval of the CGI.

Although stringent penalties, and more expansive powers of enforcement, had been introduced by the Act, the provisions of the Regulations further empower immigration officers, particularly, the powers granted to immigration officers under the Regulations18 to arrest any immigrant found committing an offence or found to have committed an offence under the Act or Regulations, and also to enter and search any premises that the immigration officer reasonably believes an offence under the Act or Regulations is being or is about to be committed. Both of these powers are exercisable without a warrant and underline a determination by the authorities to consistently monitor immigrants and ensure compliance with immigration laws by foreign nationals.

With respect to immigration-related matters, the jurisdiction to hear and determine such proceedings resides with the Federal High Court (FHC),19 and the Act further provides for the establishment of a division under the FHC which is to be responsible for hearing all matters relating to immigration.20 Although, there is provision for an immigration case to be dealt with in priority to any other case, civil or criminal, where a person is charged with an offence the conviction for which, would result in deportation,21 it should be noted that such person can be remanded in custody for a period of up to 90 days.22 Given that this provision seems to allow immigration officers to detain foreign nationals who are deemed to have contravened the Act, it is particularly important for the foreign individual and his or her employer to remain fully compliant with the provisions of the Act at all times.

ii The immigration authorities
The NIS

The NIS was established pursuant to the 1963 Act23 and assumed the fully fledged status of a paramilitary service in 1992, with changes in nomenclature. Originally extracted from the Nigerian police force in 1958, and formerly known as the Immigration Department,24 the NIS was entrusted with core immigration duties under the headship of the Chief Immigration Officer.25

Pursuant to the 2015 Act and the Regulations, the NIS is now the body primarily entrusted with the administration of the Act, with the power to sue and be sued,26 and assumes responsibilities that previously came under the purview of the Federal Ministry of Interior.

The Federal Ministry of Interior

The Ministry of Interior was created out of a merger of the Ministry of Internal Affairs and the Ministry of Police Affairs. The Ministry formulates and implements policies related to border management and supervises the NIS. Its mandate is to foster and maintain internal security and citizenship integrity for the promotion of good governance. Despite structural changes both in functions and nomenclature, the Ministry invariably continues to be involved in the immigration process, with the Minister being charged with responsibility for immigration,27 and assigned specific functions under the Act. At present, the Ministry is responsible for matters related to the granting of Nigerian citizenship, and the granting of expatriate quotas, among other functions.

Other authorities

Other relevant authorities that indirectly have an impact on the application of immigration policy and procedure in Nigeria, albeit to varying degrees, include:

  • a the Nigerian Investment Promotion Commission (NIPC), which was established in 1995 as a federal government agency created to promote, coordinate and monitor all investments in Nigeria, as well as to maintain liaison between investors and ministries, government departments and agencies, institutional investors and other authorities concerned with investment.28
  • b the Corporate Affairs Commission (CAC), which administers the provisions of the Companies and Allied Matters Act (CAMA)29 – the principal legislation that governs the incorporation and regulation of the companies in Nigeria. The CAC, by default, has an impact on the administration of the Act, and some of the provisions therein, by virtue of its integral role in matters relating to foreign participation in enterprises in Nigeria;
  • c the Securities and Exchange Commission (SEC), which administers the provisions of the Investment and Securities Act 2007, and issues guidelines on the regulation of foreign investment in the Nigerian capital market;
  • d the Federal Inland Revenue Service (FIRS), which is responsible for the collection of relevant taxes;
  • e the Federal Ministry of Labour and Productivity (FMLP), which is responsible for promoting employment, regulating the labour market, overseeing labour relations and monitoring employment conditions. In 2004, an International Labour Migration Desk (ILMD) was established within the FMPL; the ILMD is responsible for ensuring the protection of employment and social rights of Nigerian workers abroad and those of foreign migrant workers within the country, with a mandate – among other things – to establish a database on migrants within and outside Nigeria;
  • f the National Population Commission (NPC) of Nigeria, which was established by the federal government through the National Population Act No. 23 of 1989. The 1989 Act established the NPC as an independent and autonomous body to conduct regular censuses. Part of the NPC’s mandate is to compile, collate and publish migration and civil registration statistics;
  • g the National Planning Commission of Nigeria, which was established by Decree No. 12 of 1992, later amended in 1993. The functions of the Commission include dealing with matters relating to regional economic cooperation, including the Economic Community of West African States (ECOWAS), the African Common Market (ACM), the United Nations Economic Commission for Africa and the United Nations Office for South-South Cooperation;30 and
  • h the National Commission for Refugees, which was established under the National Commission for Refugees Act (Nigeria), Cap N21 LFN 2004 (the NCR Act), for the purpose of safeguarding refugees and asylum seekers in Nigeria.31 The Act prohibits the refusal of entry, expulsion, extradition or return of persons seeking refuge, until the determination of their status and a reasonable period after the exhaustion of the determination of process. The Commission is to grant refugee status to applicants on the recommendations of the Eligibility Committee,32 a member of which is the Director of the Immigration Department – now the CGI – or his or her representative.33
iii Exemptions and favoured industries

Nigeria continues to be an important destination country for migrants, the majority of whom are from neighbouring sub-Saharan countries (74 per cent).34 The influx of migrants from these neighbouring countries can be partly attributed to the right of free movement within the Community as accorded under the ECOWAS Protocol on the Free Movement of Persons, Residence and Establishment (the ECOWAS Protocol). The provisions of the ECOWAS Protocol stipulate in Article 3(2) that:

a citizen of the Community visiting any Member State35 for a period not exceeding 90 days shall enter the territory of that Member State through the official entry point free of visa requirements. Such citizen shall however be required to obtain permission for an extension of stay from the appropriate authority if after such entry that citizen has cause to stay for more than 90 days.

This provision is preserved in Section 37(13) of the Act, which confirms that nationals of ECOWAS Member States are exempt from requiring entry visas and are allowed to reside, work and undertake commercial and industrial activities within Nigeria.36 With respect to the right of residence and establishment of business, ECOWAS nationals are advised to procure a residence card from the NIS, which is valid for five years, and are also at liberty to procure an ECOWAS travel certificate, as an alternative or in addition to their country’s passport, for the purpose of travel within the community. These provisions are also, to a certain extent, reflected in the Regulations, which stipulate the need for ECOWAS nationals to register with the NIS in order to be issued with valid residence cards.37

Additionally, account should also be taken of the following laws governing various sectors and which have an impact on immigration:

  • a The mining industry: for the purposes of attracting foreign investment to the Nigerian solid minerals sector, various incentives to prospective investors were included in the Minerals and Mining Act of 2007 (the Mining Act). Specifically Section 25 of the Mining Act provides that all operators in the mining industry shall be granted various benefits, which include the automatic grant of expatriate quota and residence permits for approved expatriate personnel of operators in this sector.38
  • b The oil and gas industry: foreign investors seeking to set up businesses in the Nigerian oil and gas industry need to take account of the Nigerian Oil and Gas Industry Content Act 2010, which precludes 100 per cent foreign ownership of a company incorporated in Nigeria, for this purpose. Specifically Sections 3(2) and 106 of the 2010 Act stipulate that a company operating in this sector must be a Nigerian company, with not less than 51 per cent equity shares of the company being held by Nigerians.

II INTERNATIONAL TREATY OBLIGATIONS

A central treaty to which Nigeria is a signatory, and which is relevant to immigration law is the Treaty establishing the Economic Community of West African States (the ECOWAS Treaty) signed in Lagos in 1975 and further revised in 1993. As stated before, under the provisions of the ECOWAS Treaty, and pursuant also to the ratification of the ECOWAS Protocol and the supplementary protocols thereto, the citizens of ECOWAS Member States are to be regarded as community citizens and accorded free movement within the ECOWAS zone, with the right to reside in any Member State for up to 90 days without a visa. The rights accorded to community citizens under the provisions of the ECOWAS Treaty and the ECOWAS Protocol have been enshrined in domestic immigration law.39

Nigeria has also ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which came into force in 2003; the United Nations Convention against Transnational Organized Crime and the Protocol against the Smuggling of Migrants by Land, Air and Sea Supplementary to the UN Convention, both in 2001; Convention No. 87 on the Right to Freedom of Association and the Right to Organize in 1960; Convention No. 97 on Migration for Employment and its Recommendation No. 86 in 1960; and takes cognisance of the 1969 OAU Convention on the status of refugees in Africa and the African Charter on Human and People’s Rights of June 1982, among others.

III THE YEAR IN REVIEW

i Important changes in legislation and policy

The most significant change recently witnessed in Nigerian immigration law and policy, is the issuance of the Regulations in March 2017 by the Ministry of Interior. Stakeholders in the immigration sector anticipate that the Regulations will provide the necessary mechanism for the full and effective implementation of the 2015 Act by immigration authorities.

Additionally, during the course of the year, the Nigerian government reviewed existing visa processes for foreigners who wish to visit Nigeria for business and tourism purposes, and launched initiatives in a bid to remove bureaucratic bottlenecks and encourage business travellers and tourists. Some of the measures taken formed part of the government’s 60-Day National Action Plan (the Plan), approved by the Presidential Enabling Environment Council (PEBEC) an inter-ministerial, inter-governmental council, chaired by the Vice President of Nigeria and comprised of no less than 10 ministers, the head of the civil service of the federation, the governor of the CBN, representatives from the National Assembly, state governments and the private sector.

The Plan approved by PEBEC, which forms part of its objective of creating a conducive business environment in Nigeria contains 504 different actions, including 11 priority bills on the Ease of Doing Business40 to be passed in collaboration with the National Assembly,41 as well as short-term reforms designed to transform Nigeria into a progressive and easy place for doing business.42

ii The impact of changes on immigration practice and procedure

Elements of the Plan that have had a direct impact on immigration procedure and practice include simplifying procedures to facilitate the e-submission of applications and ensuring compliance across Nigerian missions abroad. More specifically, measures taken by the NIS, that coordinate or align with the plan include:

  • a a review of the requirements for visas to make them more customer friendly and a review of processes, with a focus on the visa on arrival, business visas, tourist visas and transit visas;
  • b proactive efforts to limit the VoA processing procedure to 48 hours;
  • c harmonisation of the airport arrival and departure cards into a single form;
  • d decentralisation of some services to the state commands, such as the reissuance of passports for name changes after marriage or lost cases having been decentralised to all state commands and foreign missions to save passport holders from the additional cost and inconvenience of travelling to the NIS headquarters in Abuja; and
  • e the opening of an additional 38 offices for the issuance of residence permits in Nigeria, as a means of bringing the issuance of CERPAC closer to employers of expatriates in all 36 states and the Federal Capital Territory.

It is also important to note that the NIS has continued to effectively embrace the use of ICT tools in its processes, and operational procedures, for enhanced service delivery and conformity with global best practices, through the availability of online applications and online payment portals for visas, as well as the continued maintenance of the NIS website as a platform for interaction and dissemination of information to the public.

Similarly, significant improvements have also been made by the CAC to improve business registration processes, which indirectly impact on the immigration process in the country. More specifically the PEBEC recently implemented an upgrade of the CAC online portal to ensure document upload capabilities, and the CAC’s target is to enable registration of businesses within 24 hours, once all requisite documents have been confirmed submitted.

IV EMPLOYER SPONSORSHIP

i Work permits

Under the provisions of the 2015 Act and the Regulations, a foreign national is precluded from accepting employment (in the private sector), without the written consent of the CGI,43 and a person wishing to employ a foreign national is required, under Section 38(1) of the Act, to apply to the CGI for consent. Failure to comply with these provisions is deemed an offence, punishable on conviction by deportation or a fine of 1 million naira, or both.44

It is therefore incumbent upon the proposed employer, seeking to employ a foreign national, to initiate the process with the relevant authorities. The process to be initiated is a multi-phased one, governed by both provisions of the Act and the Regulations, as well as applicable guidelines.

Application for expatriate quota approval

The first phase of the process is to submit an application to the Ministry, to secure an expatriate quota approval (EQA).45 This is the official permit granted to the proposed employer company to enable it employ individual expatriates into specifically approved job designations, while also specifying the term of the quota grant. Upon submission of the application, with the requisite supporting documents, as well as any additional information that may be requested, the application will be processed and, if approved, the EQA, listing the positions to be occupied by expatriates, will usually be granted for up to two years, subject to renewal.46 The employer company is required, during the term of the EQA, to submit a monthly report in the format prescribed by the NIS on the utilisation of the granted expatriate quota.

Applicants should, however, be aware that the EQA process is designed to enable technology transfer to Nigerian citizens and employers are expected to employ Nigerians to understudy the foreign experts for the purposes of training them, and enabling the acquisition of relevant skills for the Nigerian employee to later take over the position.47 Renewal, while available, is subject to utilisation and proof of the requisite understudy programme and based on the merit of the submission.

Compliance with the Nigerian Content Development and Monitoring Board (NCDMB)

Companies carrying on business in the Nigerian oil and gas industry that intend to engage the services of expatriates are advised of the requirement to first obtain the approval of the NCDMB before applying for the grant or renewal of an expatriate quota. In order to receive this approval, the company making the application is required to provide proof that the positions in the application have been advertised in at least four major Nigerian newspapers, an international newspaper and internally within the company, and that no qualified Nigerian has been found for the position.

Similarly, when making an application for the extension of an existing quota approval, the applicant company will again be required to provide evidence to the NCDMB that no Nigerian within the company is qualified to hold the position and that the positions in the application have been advertised in four national newspapers and one international newspaper. These measures are clearly designed to monitor the sponsor company’s ongoing commitment to and compliance with the requirement for technology transfer.

Application for a subject to regulation (STR) visa or residence visa

Following the grant of an EQA by the Ministry to the sponsor company, the expatriate employee seeking to take up employment in the country would be required to secure a residence visa, or an STR visa as it is commonly known, which can be applied for at the Nigerian diplomatic mission in the country in which the applicant has been domiciled for at least six months prior to the application. Upon receipt the visa application would be referred to the CGI by the Immigration Attache at the diplomatic mission; see Section 20(4)(e) of the Act.

Application for a combined expatriate residence permit and aliens card (CERPAC) or residence permit

The final step in the migration of an expatriate employee to Nigeria involves the regularisation of the status of the proposed employee, through the submission of an application for the issuance of a residence permit, or CERPAC as it is known. The CERPAC is a permit that enables a non-Nigerian to reside and work in Nigeria, or to accompany a resident or citizen of Nigeria as a dependant. Thus all non-Nigerians, and persons not from the Member States of ECOWAS, who intend to reside and work in Nigeria for a period in excess of 90 days, must apply for and obtain a CERPAC.48

The application for a CERPAC is to be submitted within three months of entry into the country and penalties exist for non-compliance under Section 57(5) of the Act and Regulation 47 of the Regulations. The validity of the CERPAC is for up to two years, but an application for renewal can be submitted to the CGI. Previously, expatriates were also expected to apply for re-entry visas to enable them enter and exit the country during the pendency of the CERPAC, but the residence permit now serves as a multiple-entry permit, by virtue of Section 18(2) of the Act. It should be noted that residence permits are also available to the dependants of the principal immigrant, provided that same shall not exceed the period of validity of the principal immigrant’s own residence permit.49

Application for a temporary work permit (TWP)

Under Section 37(8) of the Act and Regulation 8 of the Regulations, the CGI is authorised to issue TWPs outside of the quota provision, which is available for experts invited by corporate bodies to provide specialised or skilled services for a short period. The TWP is only obtainable from the office of the CGI in the NIS, subject to the submission of an application supported by a confirmed airline return ticket and acceptance of immigration responsibility (IR) by inviting organisations or individuals, and is issued by way of a letter of approval transmitted to the appropriate Nigerian mission.50 The TWP, when issued, is usually valid for three months, but can be renewed in the country for another 30 days.

Both the 2015 Act and the Regulations issued pursuant thereto impose strict penalties for non-compliance with the requisite processes described above, including a prison term of three years or a fine of 500,000 naira, or both, for failure to regularise a stay or renew a residence permit or TWP within the prescribed time periods, and, potentially also a deportation order for unauthorised change of employment under the EQA scheme.51

ii Labour market regulation

Account should be taken of labour laws and regulations applicable to expatriate and non-expatriate workers alike, particularly the provisions of the Labour Act of 1974 and applicable labour regulations.52 Also of key importance are the applicable guidelines, such as the Nigerian Content Development and Monitoring Board Guidelines on Application For Expatriate Quota & Deployment of Expatriates in the Nigerian Oil and Gas Industry of 17 May 2011 (the 2011 Guidelines), issued pursuant to the provisions of the Nigerian Oil and Gas industry Content Development Act, 2010 (the 2010 Act), and the Guidelines and Procedure for the Release of Staff in the Nigerian Oil and Gas Industry, issued by the Department of Petroleum Resources (DPR) in 2015 (the 2015 Guidelines).53

While the 2011 Guidelines, in order to encourage technology transfer, provide for the specific procedure to be followed for applications for expatriate quota approval, the 2015 Guidelines, in a bid to preserve local jobs, imposes an obligation on employers to seek the consent of the Director of the DPR prior to disengaging an employee and imposes stiff penalties for non-compliance with its provisions. More specifically, the 2015 Guidelines provide that: ‘the holder of an oil mining lease, licence or permit issued under the Petroleum Act, or under any regulations made thereunder or any person registered to provide any services in relation thereto, shall not remove any worker from his employment except in accordance with guidelines that may be specified from time to time by the Minister of Petroleum Resources.’54

iii Rights and duties of sponsored employees

The residence permit, or CERPAC, issued to sponsored employees is a temporary one, for a period of up to two years, subject to renewal. The avenues for a sponsored employee acquiring a permanent residence permit under Nigerian immigration law are very limited, although employees who are married to Nigerian citizens may be issued with a resident permit, such permit to serve as multiple re-entry permit, irrespective of the class of visa with which the employee first entered Nigeria, and provided also that any conditions imposed have been complied with.

With regard to duties to be discharged by sponsored employees in the country, account should be taken of any conditions that may have been endorsed on the residence permit of the employee, by the CGI, provided that such conditions are not inconsistent with the provisions of the Act, by virtue of Section 37(5) of the Act. Cognisance should also be taken of additional duties stipulated in the provisions of the Regulations, which are required to be discharged generally by foreign nationals residing or staying in Nigeria, including but not limited to the following requirements:

  • a to produce valid certificates and permits, upon request by the Immigration Officer – such as a valid passport, residence permit, visiting permit, transit permit or other travel document, if required to do so by an immigration office;
  • b to produce, a certificate of registration, upon demand by the Immigration Officer and such specific information as may be requested by the same;
  • c to give notice to the Immigration Officer, where a change of residence to another place within the state is intended, such notice to be given at least seven days prior to any such change; and
  • d to give notice to the Immigration Officer in the state of residence where a change of place of residence from one state to another is intended, such notice to be given at least seven days before such change occurs.55

V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS

Foreign investors wishing to enter the country for the purpose of establishing a business or engaging in self-employed activities, should take account of the provisions of Section
36(1)(b) of the Act and Regulations 4 and 12 of the Regulations. By virtue of these provisions, any person, other than a citizen of Nigeria is precluded from practising a profession or establishing or taking over any trade or business whatsoever, whether alone or in partnership with any other person, or from registering or taking over a company with limited liability for any such purpose, without the consent in writing of the Minister, such consent or authorisation to take the form of a grant of a business permit.56 Additionally, the provisions of CAMA state, in Section 54(1), that ‘every foreign company, which was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria […] shall not carry on business in Nigeria or exercise any of the power of a registered company’ until so incorporated.

Accordingly, foreign nationals interested in investing and carrying on business in Nigeria would be required to procure the necessary written consent from the Minister, and also create a local corporate entity for this purpose; the following preliminary steps should therefore be taken:

  • a ensuring the incorporation of a local company for the purpose of carrying on business, in accordance with the applicable provisions of CAMA and other relevant statutes;
  • b ensuring that any such locally incorporated entity has the requisite minimum share capital stipulated for foreign participation, and is compliant with any other limitations imposed on foreign participation, under the applicable guidelines and regulations; and
  • c procuring the written authorisation of the Minister for the establishment of such a business in Nigeria, in the form of a permit.

With respect to foreign entrepreneurs and investors seeking to enter Nigeria on a short-term basis, prior to the establishment of any long-term presence in Nigeria, consideration can be given to the visa on arrival (VoA), which is a class of short-visit visa57 provided for under the Regulations58 and issued at the discretion and authorisation of the CGI. This non-renewable visa, which may be issued at the port of entry provided, is, however, only available for a period not exceeding three months, and is issued on the premise that the recipient will not engage in any form of paid employment. To procure this visa, a formal request needs to be filed on behalf of the traveller by his or her Nigerian-based partner, and the request should be processed within 48 hours. Approval takes the form of a visa approval letter, which allows the traveller to proceed to Nigeria with the entry visa issued at the point of entry.

Alternatively, applications can still be submitted for the issuance of a business visa, which is obtainable from the Nigerian diplomatic mission in the country of residence of the applicant, and which is also valid for a period of 90 days, but can be extended in the country, if required. The visa does not allow for the visa holder to engage in paid employment.

Investors seeking to invest in the long term should also be aware of provisions in both the Act and the Regulations,59 which enable high net worth investors that invest a minimum ‘threshold of capital’ over a period of time60 to be issued with a permanent residence permit; the permit may, however, be revoked if the foreign national withdraws its investment from Nigeria.61

VI OUTLOOK AND CONCLUSIONS

It is anticipated that immigration will continue to make a significant contribution to Nigeria’s economic growth, with recent changes in law and policy representing a step in the right direction towards bringing practice and procedure in Nigeria into greater alignment with global best practices. The collective efforts of the immigration authorities in the advancement of migration in Nigeria should be commended, as should the efforts of the PEBEC to create a more enabling business environment for investors wishing to invest in Nigeria.

Notwithstanding, it is recommended that greater collaboration between the relevant government agencies responsible for migration laws and policies should continue so as to ensure the continued evolvement of immigration laws and effective border security and management.

1 Adekemi Sijuwade is a partner at Advocaat Law Practice. The author would like to thank Miss Eniola Durojaye, an associate at Advocaat Law Practice, for her assistance in the preparation of this chapter.

2 The Act also sets out provisions for the prohibition of smuggling of migrants into and from Nigeria, and for the protection of, and provision of remedies and assistance to, objects of smuggling of migrant offences in Nigeria. It also gives effect, in the Federal Republic of Nigeria, to the provisions of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime.

3 Cap I1, Laws of the Federation of Nigeria, 2004, now repealed. The Act also repeals the Passport (Miscellaneous Provisions) Act, Cap P1, Laws of the Federation of Nigeria, 2004. See Section 114 of the Act.

4 Section 112(1) of the Act empowers the Minister of Interior to make such regulations as are in his opinion necessary or expedient for giving full effect to the provisions of the 2015 Act, and for the due administration thereof.

5 See Part I, Regulation 1 of the Regulations.

6 See Part I of the Act, and Part IX of the Regulations.

7 Applications can be submitted online via the NIS portal.

8 Where a visa application is submitted to the diplomatic mission established abroad, the same shall be issued by the immigration attaché or any other officer designated for the purpose by the head of the mission; by virtue of Section 20(3) of the Act.

9 Section 19(6)(b-c) of the Act.

10 Section 19(6)(d) of the Act.

11 Section 18(1)(c) and 19(6)(a) of the Act. A prohibited immigrant is further defined in the provisions of the Act as a person liable to be refused entry or deported under the Act, and includes, but is not limited to a person without visible means of support, a mentally ill person, a person convicted of a crime, as well as anyone whose admission would, in the opinion of the Minister, be contrary to national interest or security; by virtue of Section 44 of the Act.

12 Section 18(1)(d) of the Act.

13 Section 18(1)(e) of the Act. By virtue of Section 19 of the Act, such power to deny entry into Nigeria, or to admit persons into Nigeria subject to conditions, is to be exercised by notice in writing, and such notice to be delivered by the immigration officer to the person to whom it relates.

14 See Sections 56–60, and Section 105 and 106; see also Regulations 44-53.

15 Section 105(2).

16 Section 36(2).

17 Section 106.

18 Regulations 34 and 35.

19 Section 96.

20 Section 96(2) of the Act.

21 Section 48(1) of the Act.

22 Section 48(1) of the Act. Additionally the Minister is granted power under Section 55(1) to apply to the court for a receiver and manager in respect of a business previously owned by a person who has been detained or deported, or has been detained, where it appears to the Minister that it should be wound up.

23 Under the provisions of the ١٩٦٣ Act, specifically Sections ٥١(١) and (٢)(b), the Minister was empowered to make such regulations as in his opinion were necessary for the due administration of the Act, including regulations for the establishment of a uniformed immigration service and the terms and conditions of the employment therein.

24 The Immigration Department was formally established by an Act of Parliament on ١ August ١٩٦٣; Cap ١٧١, Laws of the Federation Nigeria.

25 The details of the history and background of the NIS are as provided on its website.

26 Section 1 of the 2015 Act.

27 As defined in the 2015 Act, Section 116.

28 The functions of the NIPC are as stipulated under Section 4(h) of the Nigerian Investment Promotion Commission Act No. 16, 1995 (the NIPC Act).

29 Company and Allied Matters Act, Cap C20, LFN 2004.

30 The detailed objectives, functions, powers and structure of the National Planning Commission are outlined under Sections 2, 3 and 5 of the Establishment Act.

31 The Act incorporates the 1951 United Nations Convention relating to the Status of Refugees, the 1967 Protocol and the 1969 Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa.

32 By virtue of Section 1(3) of the 1989 Act, which stipulates that: ‘No person, claiming to be a refugee within the meaning of this Act who has illegally entered into or is illegally present in Nigeria, shall be expelled, extradited or returned merely by reason of his illegal entry or presence in Nigeria or any part of Nigeria pending the determination of his application for a refugee status.’

33 By virtue of Section 6(1)(b) of the NCR Act.

34 ‘Migration in Nigeria: A Country Profile, 2009’, a publication by the International Organisation of Migration (IOM) and prepared by Adejumoke Afolayan and IOM’s Research Division, identifies the majority of immigrants in Nigeria as having originated from Benin, Ghana, and Mali.

35 For the avoidance of doubt the Member States of the Economic Community of West African States (ECOWAS) are: Benin, Burkina Faso, Cape Verde, the Gambia, Ghana, Guinea, Guinea-Bissau, the Ivory Coast, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone and Togo.

36 Provided that such citizens shall register with the NIS as nationals of the ECOWAS; see Section 37(13) of the Act.

37 Regulation 5(9).

38 By virtue of Section 25(1)(b) of the Nigerian and Mining Minerals Act 2007.

39 By virtue of Section 37(13) of the Act.

40 Two of the bills are aimed at improving entrepreneurs’ accessibility to credit.

41 The Vice President of Nigeria, who is also Chairman of the PEBEC, in February of this year, affirmed a renewed synergy with the legislature to ensure that all necessary legislation relating to the reforms was passed by the National Assembly and the importance of collaboration between the executive and legislature in creating a more conducive business environment in the country for both local and foreign businesses was also affirmed by the Senate President.

42 The PEBEC aims to move Nigeria ahead in its ranking in terms of ease of doing business, following the World Bank’s Doing Business Report, which recorded Nigeria as having only made meaningful improvements in two areas in the 12-month period ending June 2016, namely protecting minority investors and getting credit, based on an evaluation of the legal framework governing loans; however, in the area of starting a business Nigeria ranked 138th Part of the PEBEC’s targets is to move Nigeria 20 places up in the World Bank ‘Doing Business’ Rankings by October 2017 and to have it ranked in the top 100 by the year 2019, Nigeria having ranked 169 out of 190 on the Doing Business Rankings of the World Bank, and 182 out of 190 in Trading Across Borders Ranking. These goals and achievements were articulated by Mrs J Oduwole, senior special assistant to the president on Industry, Trade and Investment in the Office of the Vice President and Secretary to the PEBEC.

43 By virtue of Section 36(1) of the Act and Regulation 12(3) of the Regulations.

44 By virtue of Section 36(2) of the Act.

45 See Regulation 12 of the Regulations regarding the authority of the Minister to issue the EQA.

46 Under Regulation 12(2) of the Regulations, a stay of action may be issued by the Minister during the pendency of a renewalapplication; the Stay of Action letter legalises the stay of a foreign national in the country, pending the completion of the application process for renewal of the EQA.

47 A corporate entity is required under Regulation 52 of the Regulations to engage Nigerian employees to understudy expatriate employees and refusal to comply with this provision is an offence, as is the unauthorised use by another organisation of expatriate quota positions granted; (see Regulation 52(7-8) of the Regulations). These provisions underline the increased scrutiny to which the use of the expatriate quota process has or is being subject.

48 See Sections 37(1)(2) and (6) of the Act.

49 See Regulation 13 of the Regulations.

50 See Regulation 8 of the Regulations.

51 See Sections 57(5) and Section 58 of the Act, and Regulation 47 of the Regulations.

52 The Labour Act 1974 (Cap L1, LFN 2004). Cognizance should also be taken of applicable international treaties ratified by Nigeria, including its ratification of the International Labour Organisation Employment Convention, by virtue of Section 37 of the Labour Act 197, which enables cognisance of international agreements ratified by Nigeria.

53 The 2015 Guidelines derives its authority from Regulation 15A of the Petroleum (Drilling and Production) (Amendment) (Regulations 1988) made pursuant to Sections 9(1)(b) and 12(1) of the Petroleum Act; Section 9 of the Petroleum Act empowers the Minister to issue regulations for the purpose of giving effect to the provisions of the Act.

54 Since its issuance, however, the 2015 Guidelines, which make no distinction between the category and grade of workers, thereby protecting all workers including menial casual junior or senior staff, have been criticised for being intrusive and contrary to established case law.

55 See Regulations 18, 26 and 33(1) of the Regulations.

56 By virtue of Section 36(1)(b) of the Act and Regulations 4 and 12 of the Regulations.

57 The short visit visa, provided for under Sections 20(7) and 37(9) of the Act, is a measure designed to attract potential investors and high-profile travellers to Nigeria, which is available ‘to frequent business travellers of international repute, executive directors of multinationals, members of government delegations, holders of a UN, AU and ECOWAS laissez-passer, as well as holders of any other official travel documents of other recognised organisations.

58 See Regulation 9 of the Regulations.

59 Regulation 5(7) of the Regulations and Section 37(11) of the Act.

60 By virtue of Section 37(11) of Act, the threshold capital would be determined from time to time in the national visa policy or any other policy.

61 Regulation 5(7).