I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Ghana is located on the west coast of Africa. It is bounded by Burkina Faso to the north, Ivory Coast to the west, Togo to the east and the Gulf of Guinea to the south. It has a social, political and economic environment that is most conducive to business and is certainly one of Africa's leading economies.
All foreigners who intend to enter or transit through Ghana's territory must first obtain a Ghana entry visa from a Ghanaian consulate abroad and must also be in possession of a valid passport or travel documents establishing the identity of the holder before they travel to Ghana. However, citizens of the Economic Community of West African States (ECOWAS)2 and also more recently citizens from the remaining African Union (AU) countries are exempted from applying for visas but are required to obtain an entry visa stamp on arrival at the international airport in Accra.
The Ghana Immigration Service (GIS) is the key agency responsible for immigration in Ghana. However, Ghana's immigration landscape accommodates various other actors (i.e., agencies and regulators) who play various roles in the overall immigration processes pertaining to work authorisation for foreign assignees in their respective sectors.3 These include the Petroleum Commission in respect of oil and gas companies, and companies offering services to the petroleum sector, the Minerals Commission for mining companies and mining support companies, the Ghana Investment Promotion Centre (GIPC) for companies with foreign shareholdings, and the Ghana Free Zones Authority for companies registered as free zone companies.
These actors' involvement in Ghana's immigration processes can include issuing automatic immigrant quotas, or control over all work authorisation processes for companies intending to employ foreign nationals.
i Legislation and policy
Ghana introduced the National Migration Policy in 2016, aimed at bringing migration issues into the spotlight and improving various aspects of Ghana's immigration management and control activities, and ultimately facilitating the achievement of an improved immigration compliance practice in Ghana. The primary legislation governing immigration in Ghana is the Immigration Act4 and the Immigration Regulations5 passed pursuant to the Act. This legislation serves as the primary source for all immigration services provided in Ghana. The GIS is the frontline agency responsible for the entry, residence and employment of foreign nationals in Ghana in accordance with the provision of the Immigration Act. Other pieces of legislation with a bearing on migration issues include:
- the Ghana Investment Promotion Centre Act 2013 (Act 865) (the GIPC Act); and
- the Free Zone Act 1995 (Act 504).6
There are two main types of work permit issued by the GIS: temporary and long-term work permits. The former is valid for six months and the latter is usually valid for a year. Temporary permits are non-renewable while the long-term work permits may be renewed upon an application to the Director of Immigration.
The GIPC Act guarantees issuance of automatic immigrant quotas to companies with foreign participation operating in Ghana. These quotas are issued based on the company's level of investment or foreign paid-up capital. Irrespective of the above-mentioned immigrant quotas, the GIS may refuse to grant a visa to an expatriate to whom a quota relates, where the GIS has sufficient reason to believe that the expatriate is not a desirable person and should not be permitted to enter the country.7
ii The immigration authorities
The main agency responsible for immigration is the GIS, which falls within the remit of the Ministry of Interior.
The GIS is tasked with performing the core immigration function of monitoring movement into and out of the country, regulating the activities of foreigners, issuance of permits and visas, and monitoring and investigating breaches of the immigration laws and regulations. It is further tasked with ensuring compliance with the provisions of the GIPC, social security and income tax laws, issuance of permanent residence status and indefinite stay status to deserving applicants, detention, removals, passport processing, collaboration with other agencies, refugees and asylum assistance and border patrol.
The Ministry of the Interior, on the other hand, is mandated to ensure internal security, prevent and manage internal conflicts and disputes, manage crime prevention and prosecution of offenders, rehabilitation and reform of prisoners, protection of the country's frontiers, immigration control and monitoring of the activities of illegal immigrants, the repatriation and deportation of illegal aliens and the extradition of fugitive criminals.
iii Exemptions and favoured industries
ECOWAS citizens are offered preferential treatment, such as the right to enter Ghana, reside and establish a business during a stay of not more than 90 days. However, citizens must be in possession of a valid travel document and an international health certificate.
The GIPC encourages foreign investment in a number of sectors. These include agriculture and agro-processing, information and communications technology, infrastructure, energy, healthcare and food processing.
Incentives and benefits are provided to these sectors, including customs duty exemptions on equipment imported for investment purposes; general free transferability of capital,8 profits and dividends; insurance against non-commercial risks;9 double-taxation agreements to rationalise the tax obligations of investors to prevent double taxation; and automatic immigrant quotas.10
II INTERNATIONAL TREATY OBLIGATIONS
On 28 May 1975, in Lagos, Nigeria, with 14 other Member States, Ghana signed the treaty establishing ECOWAS. This treaty was created to promote economic trade, national cooperation and monetary union for growth and development throughout West Africa.11
Citizens of Member States may freely enter Ghana and they have the right to work and undertake commercial activity provided they possess a valid travel document, residence card or permit and have registered the company. They also have the right to reside in Ghana as long as they have an approved passport and have gained admission through the approved port of entry.12
However, it is not permissible for ECOWAS citizens to reside illegally or enter into Ghana illegally. Thus Ghana can refuse entry to any ECOWAS citizen that falls within the category of inadmissible immigrant under its laws.
On March 2018, Ghana signed the AU Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Right of Establishment (the AU Protocol). Among other things, the provisions in the AU Protocol (which are akin to those of the ECOWAS Protocol)13 sought to permit free entry for citizens of the African Economic Community through adoption of the AU Passport by 2018.14 To date, Ghana has not implemented the AU Protocol, although it has implemented a policy15 permitting African nationals (as well as ECOWAS citizens) to travel to Ghana without a pre-approved visa and to be issued with a visa on arrival for a stay of up to 30 days. Given a backdrop against which trade and movement of persons are considered inseparable, the achievement by the AU of the provisions of the Protocol has been ambitiously tied to the African Continental Free Trade Agreement, which was adopted by a sizeable number of Member States around the same time as the Treaty on Free Movement was adopted. This Agreement created the African Continental Free Trade Area (AfCFTA), the largest free-trade area in the world since the formation of the World Trade Organization.
III THE YEAR IN REVIEW
i Year of Return
In September 2018, President Nana Akufo-Addo of Ghana declared 2019 to be the 'Year of Return', to mark 400 years since the first enslaved Africans arrived in the Americas. In commemoration of the initiative, a year-long series of high-profile activities were organised by the government of Ghana, coupled with a relaxation of Ghana's immigration and citizenship-acquisition regimes to facilitate easy travel and integration of Africans from the diaspora. Other interventions included a reduction in entry visa fees, a grant of visa waivers to selected countries (including Jamaica, and Trinidad and Tobago),16 the fast-tracking of the issuance of indefinite residence permits and right-of-abode requests, and the granting of citizenship to a host of members of the African diaspora.17 Figures from the GIS showed that by September 2019 international arrivals had seen growth across the board, with over 237,000 visitors more than arrived in 2018.18 The initiative was highly lauded and deemed successful as it also put Ghana on the world tourist map and the country was rated one of the most attractive holiday destinations in the world for the 2019 Christmas season.
ii Implementation of ECOWAS free movement, and immigration challenges
The ECOWAS countries have made further strides towards integration with some key Member States such as Ghana proceeding to fully implement Sections 1 and 2 of Article 5 of the ECOWAS Protocol. Article 5 provides for citizens of Member States being able to enter another country within ECOWAS with a private vehicle for a period not exceeding 90 days and for not more than 15 days for commercial vehicles registered in the territory of residence upon presentation of some basic documents at borders. Hitherto, citizens of Member States, particularly traders and commuters, faced a lot of challenges crossing borders within ECOWAS with their private and commercial vehicles. Although this movement on the ECOWAS Protocol was well received by Member States in May 2019, by August of the same year Nigeria had closed its land borders with neighbouring countries to curtail smuggling of goods, among other unhealthy trade practices by ECOWAS citizens.19 In what may be described by many stakeholders as retaliation, the Ghana Union of Traders' Association closed down shops of Nigerian immigrants in the retail sector. These developments have had a negative impact and may continue to have an impact on immigration within ECOWAS, especially among traders and members of the business community plying their trade by land, and it also has the long-term effect of impeding the integration of ECOWAS.
iii AfCFTA, free movement protocols and visa waivers
Following the adoption of the AU Protocol and subsequently the adoption of the AfCFTA, Ghana put in a bid to host the AfCFTA Secretariat and eventually emerged the winner in 2019.20 It is envisaged that hosting the Secretariat will have an impact on immigration to Ghana given the enormous tasks the Secretariat has to undertake and its huge importance in the continuing efforts towards integration of the continent. Although Ghana has yet to ratify the AU Protocol, it has already initiated a bilateral visa waiver agreement with South Africa,21 which is expected to facilitate movement of persons between the two countries initially, ahead of the overall continental arrangement, and includes rights of residence and of establishment. Beyond the continent, Ghana signed visa waiver agreements with a number of countries in 2019, including India, Columbia, Iran and Hungary.
IV EMPLOYER SPONSORSHIP
All foreigners who intend to work in Ghana must be sponsored by a host entity in Ghana. An offer letter or a valid contract must exist between the host entity and the assignee to trigger the work authorisation process.
Foreign nationals may only work in Ghana after obtaining a work permit issued to the company by the GIS or an automatic immigrant quota issued by the GIPC. A holder of a work permit or GIPC quota must subsequently apply to the GIS for a residence permit to be fully authorised to work.
i Work permits
It is mandatory for all foreign nationals seeking work in Ghana to have a relevant work permit. Corporate bodies and other institutions that wish to employ foreign nationals may obtain work permits for these employees upon application to the Ministry of the Interior through the Director of the GIS. As mentioned above, there are two main types of work permit issued by the GIS: temporary and long-term work permits. Generally, the requirements for obtaining a work permit are as follows:
- from the employer:
- business registration documentation;
- corporate tax clearance certificate;
- application letter;
- audited accounts (if available);
- letter of support from government agencies (where applicable);
- GIPC registration certificate (if applicable);
- completed, signed work permit application form; and
- offer or appointment letter, or contract of employment; and
- from the employee:
- copy of bio data page of passport;
- curriculum vitae;
- professional and educational certificates;
- medical certificate indicating fitness to work;
- police clearance certificate from country of origin or current residence; and
- evidence of efforts to recruit a Ghanaian for the position (i.e., advertisement of the job vacancy).
The residence permit allows multiple entries into Ghana by the holder during the period of validity of the permit. An application for a residence permit may require an assignee to surrender his or her passport during consideration of the application. Other conditions must also be met before a residence permit is issued, including providing a copy of the applicant's non-citizen identification card and passport-size photographs.
Dependants of a residence permit holder must demonstrate their connection to the permit holder to be issued with a residence permit. A spouse may be required to submit evidence of marriage and copies of relevant birth certificates may be required for children. No work for remuneration by those on a dependant's permit is permitted. Benefits include:
- multiple entries into Ghana during the period of validity of the residence permit;
- dependent children may enrol in schools and are entitled to all benefits accorded to Ghanaians; and
- access to all services, including banking and insurance.
Additional requirements of regulators and government agencies
Additional requirements may be imposed by government and regulatory agencies that play a part in the work authorisation process. These include the GIPC, the Free Zones Authority, the Petroleum Commission and the Minerals Commission. Their level of involvement varies from simply issuing automatic immigrant quotas to complete control of the process. Companies that fall within the sectors overseen by these bodies must register with the relevant regulatory agency.
A person (other than a prohibited immigrant)22 aggrieved by a refusal to grant or renew his or her permit, or by a revocation of permit or repatriation may petition the Minister of Interior for redress within seven days of the action and the Minister may take appropriate action to redress the matter.23 Recourse to the law courts is also available to an aggrieved party in respect of a decision of the immigration authorities.
ii Labour market regulation
The Constitution of Ghana offers protection to all persons in Ghana.24 Foreign workers therefore have the same rights as Ghanaian workers and cannot be subject to discrimination at work on the basis of their nationality.
Labour Act of Ghana
Ghana's Labour Act25 is applicable to all workers and employers in Ghana. The law defines a worker in broad terms irrespective of nationality.26 The law prescribes the rights and obligations of employers and employees.27 The law provides protection against unlawful termination of employment28 and provides remedies for unlawful termination.29 The law further guarantees employees the freedom to form and join trade unions of their choice30 and generally prohibits unfair labour practices.31 To further protect the rights of both employers and employees, the National Labour Commission (NLC) was established by law to receive complaints from workers, trade unions, employers and employers' associations in the settlement of industrial disputes.32 In settling disputes, the NLC has the powers of the High Court of Ghana.33 There is a right of appeal to the Court of Appeal against a decision of the Labour Commission.34
The NLC is the main administrative adjudicating body in charge of ensuring a congenial atmosphere for all labour market participants. The NLC has resolved countless industrial disputes using effective industrial relations mechanisms outlined in the Labour Act, the NLC Regulations35 and the Labour Regulations.36
Its duties include receiving labour-related complaints, facilitating the settlement of industrial disputes, settling industrial disputes and promoting effective cooperation between labour and management.
The establishment of the NLC has enhanced cooperation between social partners, which has translated into a harmonious industrial relations environment in the country.
Since July 2013, the National Pensions Regulatory Authority has required foreigners working in Ghana to make social security contributions. The definition of a worker under the National Pensions Act37 covers all workers, including foreign workers, who are therefore required to make the statutory pension contribution. Employees are expected to make a mandatory contribution of 5.5 per cent of their basic salary to the scheme on a monthly basis while the employer makes a compulsory contribution of 13 per cent on a monthly basis. Employees may elect to make additional voluntary contributions. There is also voluntary coverage for self-employed persons and previously insured persons who are unemployed. The Act provides for a sanctions regime for non-compliance.38
An employer engaging the service of a foreign national in Ghana must present evidence to satisfy the GIS that attempts have first been made to recruit a Ghanaian to the position.39 This evidence may be in the form of a newspaper advertisement or any other mode of advertisement. Oil and gas service companies are also mandated to incorporate the dictates of the 'local-content' regulations applicable to their sector in recruiting foreign labour to undertake work activities in the sector.40 Companies in the oil and gas sector are required to submit local-content plans for approval from the Petroleum Commission prior to registration to undertake petroleum activities.41 It is further required that the local-content plan should contain a sub-plan on employment and training of the Ghanaian workforce.42 Preference must also be given to Ghanaian companies in the acquisition of goods and services.43
Resident and non-resident taxpayers
An individual who is not a citizen of Ghana is resident for tax purposes in any particular year if he or she resides in Ghana for a period exceeding 183 days in a 12-month period that commences or ends during the year of assessment.44
Non-residents are liable for tax on income earned or derived in Ghana. They are not liable for tax on income brought into Ghana or received from a source outside Ghana. Tax relief is available where Ghana has a tax treaty with the applicable country.45
iii Rights and duties of sponsored employees
The sponsored employee has a right to work and reside in Ghana, freely going about lawful activity. They are also guaranteed the fundamental freedoms in the Ghanaian Constitution.46 As with many countries, foreign nationals working in Ghana are also accorded certain rights and privileges enjoyed by Ghanaian47 workers, including all rights to redress available to Ghanaians. Specifically, the rights and duties of an employee provided in our Labour Act are applicable to sponsored employees working in Ghana.48 These include the right to work under satisfactory, safe and healthy conditions, to receive equal pay for equal work without discrimination of any kind and to receive information relevant to the work undertaken.49
- an obligation to notify the Director of Immigration within seven days of commencement of employment or cessation of employment;52 and
- an obligation to submit an annual return, not later than 14 January in each year, to the issuing authority with a copy to the Director of Immigration, giving names and addresses of all foreign employees in their employment as at 1 January.
Other particulars that may be prescribed will also have to be provided.53
The Labour Act of Ghana further imposes general duties on workers, including the following:
- to work conscientiously in the lawfully chosen employment;
- to enhance productivity;
- to obey lawful instructions regarding the organisation and execution of the work undertaken; and
- to take proper care of the property of the employer entrusted to the worker or under the immediate control of the worker.54
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
As foreign direct investment is an integral part of Ghana's economic policy, the government has created an enabling legal environment by passing laws that encourage foreign investment.55
Foreign investors intending to invest in Ghana can opt to register a wholly owned limited liability company, a joint venture with a Ghanaian partner or a branch office in Ghana at the Registrar General's Department under the relevant laws. If approved, the enterprise is issued a certificate of incorporation and a certificate to commence business.
The GIPC Act established the GIPC under the Office of the President and it is responsible for promoting investment in all sectors of the economy. Thus entities with foreign participation must register with the GIPC and satisfy the provisions of the GIPC Act. Sector-specific laws further regulate banking, non-banking financial institutions, insurance, fishing, securities, telecommunications, energy and real estate.
The GIPC Act provides the following in respect of the minimum capital requirement for non-Ghanaians in any enterprise:
- for a joint enterprise with a Ghanaian partner, the minimum capital requirement is US$200,000 or its equivalent in capital goods;
- for a wholly foreign-owned enterprise, the minimum capital requirement is US$500,000 or its equivalent in capital goods; and
- for a trading enterprise irrespective of whether it is wholly or partly owned by a non-Ghanaian, the minimum capital requirement is US$1 million and the enterprise shall be required to employ at least 20 skilled Ghanaians.
There are benefits for business entities that register with the GIPC, including immigrant quotas and other investment guarantees.56
Also, Ghana's investment laws protect investors against expropriation and nationalisation. Thus, a person who owns the capital of an enterprise may not be compelled by law to surrender that interest in the capital to any other person.57 Moreover, regarding disputes, where the investor and the government fail through discussion to reach an amicable settlement, the aggrieved party has the option to submit the dispute to arbitration.58
ii Skilled migrants
Ghana does not have a skilled migrant policy; however, companies are allowed to recruit skilled migrants with specialised skills not readily available on the Ghanaian market. Skilled migrants are issued work permits, usually valid for three to four years, and these specialised skills are expected to be imparted to the Ghanaian workforce during this period.
VI OUTLOOK AND CONCLUSIONS
The Year of Return initiative directly led to a boost in the economy. This exposure has opened the door for collaborations between companies in the diaspora and Ghana. It is envisaged that this will translate into a lot of foreign investment into Ghana, especially from the diaspora, in the coming years.
Ghana's role in the AfCFTA also places it in the forefront to benefit from the common market. This will not only boost the fortunes of the country, but also directly open up the country to foreign investment.
In conclusion, the economic outlook for the country is expected to continue to be positive and to attract foreign investment.
1 Paa Kwesi Hagan is managing partner at Globetrotters Legal.
2 ECOWAS is a regional group of 15 West African countries founded on 28 May 1975 with the signing of the Treaty of Lagos. Its mission is to promote economic integration and share development of the West Africa subregion.
3 Section 29 of the Immigration Act 2000 (Act 573) recognises the role of other agencies or enactments in the granting of quotas.
4 Immigration Act 2000 (Act 573).
5 Immigration Regulations 2001 (LI 1691).
6 Sections 28, 29, 30, 31, 34 and 35 of Act 504.
7 See Section 23(1)(4) of the Ghana Investment Promotion Centre Act 2013 (Act 865).
8 Section 32 of Act 865.
9 Ghana is a signatory to the World Bank Multilateral Investment Guarantee Agency convention.
10 Section 35 of Act 865.
11 Members are Benin, Burkina Faso, Cape Verde, Gambia, Ghana, Guinea, Guinea Bissau, Ivory Coast, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo.
12 Article 27(2) of the ECOWAS Treaty.
13 ECOWAS Protocol relating to Free Movement of Persons, Residence and Establishment (Protocol A/P 1/5/79).
14 Articles 6 and 7 of the AU Protocol to the Treaty Relating to the Establishment of Free Movement.
15 Following an announcement made by the President of Ghana in July 2015.
16 See https://www.africanvibes.com/year-of-return-ghana-and-jamaica-waive-entry-visa-requirements/.
17 Kwasi Gyamfi Asiedu, (28 November 2019) Caribbeans as part of Year of Return) available at https://qz.com/africa/1757853/ghana-gives-citizenship-to-100-african-americans-year-of-return.html.
18 See https://www.facebook.com/photo.php?fbid=10162623114970634&set=a.10151766836645634&type=3&theater.
19 See https://blogs.worldbank.org/africacan/nigerias-border-closure-road-block-or-speed-bump-road-successful-afcfta.
20 See http://theconversation.com/ghana-hopes-to-benefit-from-hosting-africas-free-trade-area-secretariat-120386.html.
21 See Parliament of Ghana, News & Events, '28-10-2019: Bilateral agreements for waiver of visa requirements' available at https://www.parliament.gh/news?co=52.html.
22 Prohibited immigrants include those with a deportation order in force against them, those whose activities are contrary to the laws of Ghana and those who have been declared by a medical officer to be medically unfit to enter Ghana.
23 Section 46 of Act 573; however, the petition is not a stay of the action that is the subject of the petition.
24 Article 12(2) states that 'Every person in Ghana, whatever their race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.'
25 The Labour Act 2003 (Act 651) is a comprehensive law consolidating all the laws relating to labour, employers, trade unions and industrial relations.
26 Section 175 of Act 651.
27 Sections 8, 9, 10 and 11 of Act 651.
28 Sections 15, 17 and 18 of Act 651.
29 Sections 63 and 64 of Act 651.
30 Sections 79 and 80 of Act 651.
31 Sections 127, 128, 129, 130 and 131 of Act 651.
32 Sections 135 and 139 of Act 651.
33 Section 139(2) of Act 651.
34 Section 134 of Act 651.
35 NLC Regulations 2006 (LI 1822).
36 Labour Regulations 2007 (LI 1833).
37 In Section 211 of the National Pensions Act 2008 (Act 766), the definition of a worker includes:
a person who is employed for salary in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets his salary, directly or indirectly from the employer, and any person employed by or through a contractor in or in connection with the normal work of the establishment, who is:
- employed in this country but not as a member of the crew of any ship; or
- employed as a permanent resident of Ghana:
- as a member of the crew of a ship, the owners of which have an office or agents in Ghana; or
- outside Ghana but employed by an employer in Ghana.
38 See Sections 200 and 201 of Act 776.
39 Priority is to be given to Ghanaians in Regulation 9(1)(a) of the Petroleum (Local Content and Local Participation) Regulations 2013 (LI 2204).
40 See also the Petroleum (Local Content and Local Participation) Regulations 2013 (LI 2204).
41 Regulation 7 of LI 2204.
42 Regulation 9(3) and 17 of LI 2204.
43 Regulation 11 of LI 2204.
44 Section 160 of Internal Revenue Act 2000 (Act 592).
45 Section 111 of Act 592.
46 Section 12(2) of the 1992 Constitution of Ghana states that 'Every person in Ghana, whatever their race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.'
47 See Labour Act 2003 (Act 651), National Labour Commission Regulations 2006 (LI 1822) and Labour Regulations 2007 (LI 1833).
48 See the definition of a worker in Section 175 of Act 651.
49 Section 10 of Act 651.
50 Section 8(1)(h)of Act 573.
51 The foreign employee is prohibited from changing their employment.
52 Section 30 of Act 573.
53 Section 31 of Act 573.
54 Section 11 of Act 651.
55 Act 865 is the primary law promoting foreign direct investment into Ghana.
56 These include full repatriation of dividends and net profit attributable to the investment made in enterprise, payments in respect of loan servicing where a foreign loan has been obtained, and fees and charges in respect of technology transfer agreements registered with the centre, as well as guaranteed protection from expropriation.
57 Section 31 of Act 865.
58 Section 33 of Act 865.