I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
i Legislation and policy
Nigerian immigration law is derived principally from statute, supported by policy and case law. The central piece of legislation governing immigration law and practice in Nigeria is the Immigration Act of 2015 (the 2015 Act), which is supported by the Immigration Regulations of 2017 (the Immigration Regulations). The Immigration Regulations were issued as subsidiary legislation by the Minister of Interior (the Minister), pursuant to Section 112(1) of the 2015 Act2 and provide the legal framework for the effective implementation of that Act.3
Additionally, in February 2020, a New Visa Policy (NVP), was formally launched by President Muhammadu Buhari, introducing a reformed visa regime. The NVP is intended to attract more foreign direct investment (FDI) into the country's economy, while drawing innovation, specialised skills and knowledge from abroad to complement local capacity. However, notwithstanding its formal launch earlier in the year, as at the time of writing the full implementation of the NVP has yet to commence.
With respect to the administration of immigration control, the provisions of the 2015 Act specifically designate the Nigeria Immigration Service (NIS) as the principal body charged with responsibility for administering the Act,4 under the headship of the Comptroller General of Immigration (CGI).
Categories of visas and permits available
Both the 2015 Act and the Immigration Regulations provide for the issuance of various types of visas and permits by immigration authorities to non-Nigerians for entry to and residence in Nigeria. The newly introduced NVP now broadens the range of visa classes prescribed under the 2015 Act and delineates the following three main categories: (1) Short Visit Visas (SVVs), (2) Temporary Residence Visas (TRVs), and (3) Permanent Residence Visas (PRVs).5 The NVP provides a class of visa for almost every conceivable purpose for entry into the country, increasing the number of classes of visa from six to 79 in total, with each class of visa now having a code for ease of processing. Details of the three categories of visas identified under the NVP are provided in the table below:
|Visa category||Purpose||Number of visa classes||Applicable provisions|
|SVVs||Provides an avenue for foreign nationals to enter Nigeria for a maximum period of 90 days for various short-term purposes, including visits, tourism, business meetings, sport, entertainment, and specialised services||28||Sections 20(7) and 37(9) of the 2015 Act|
|TRVs||Permits foreign nationals to live in Nigeria for a maximum period of two years for the purposes of employment, establishing a business and schooling, among others||36||Section 37(2), (6) and (10) of the 2015 Act; Regulation 5(1) and (2), and Regulation 8(TWP) of the Immigration Regulations|
|PRVs||Enables individuals to reside in Nigeria for up to five years or more, providing an avenue for obtaining permanent residence status in Nigeria available to investors, retirees and highly skilled individuals, among others||15||Section 37(11) and (12) of the 2015 Act; Regulation 14 of the Immigration Regulations|
Modes of application
Applications for visas and most permits are made to the CGI6 or to the appropriate Nigerian diplomatic mission established abroad.7 However, the recently launched NVP promotes the use of two additional visa application channels whereby travellers wishing to enter the country can apply for visas. The following application channels are encouraged for use under the NVP.
Application via Visa on Arrival
The Visa on Arrival (VoA) channel is available at the Nigerian port of entry, (at the desk marked 'Visa on Arrival') for those whose visa application falls within the qualifying classes of visas; these include frequent business travellers, emergency relief workers and holders of passports of African Union (AU)8 countries. Once the application9 has been submitted at the port of entry, the applicant will be required to make an online payment through the NIS website and undergo biometric enrolment to be issued the entry visa.
Online e-visa application
This service is an online process requiring intending visitors to apply online via the NIS website. Following successful consideration and processing of the application, the applicant will receive by email approval confirmation and an Electronic Travel Authorisation Letter (eTAL) within 48 hours of the application; the applicant is required to obtain this pre-approval before coming into Nigeria. Application by e-visa is available for specific classes of SVVs, including the transit visa, business visa, tourism visa, journalist visa and visas for staff of international non-governmental organisations (INGOs).
Application at the Nigerian diplomatic mission or embassy or authorised visa application centre
The submission of an application at the Nigerian diplomatic mission or embassy is an avenue available in respect of all classes of visas, including the categories of visa that qualify for VoA and e-visa applications. To use this channel, application and payment is initially effected online, with the requisite supporting documents to be submitted at the embassy and, if necessary, the applicant will be required to attend an interview; if the application is approved, the visa will be issued. Applications for Nigerian visas requiring submission at Nigerian diplomatic missions can also be submitted at established visa application centres, which are available in some countries and are authorised to receive applications and submit these to Nigerian embassies on behalf of the visa applicant.
Prerequisites for entry
Section 18 of the 2015 Act stipulates that, unless the Minister or the CGI directs otherwise, an immigration officer shall admit into Nigeria a person who:
- 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
- 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 for entry into Nigeria should, therefore, ordinarily be 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;10 where, on the advice of a medical inspector, it is undesirable for medical reasons to admit such a foreign national;11 or where the national seeking entry is classified as a prohibited immigrant.12 Entry can also be validly denied to those considered a risk to public health, public interest or national security13 and those who should not be admitted into Nigeria on any other grounds as may be prescribed from time to time by the Minister or the CGI.14
Penalties for non-compliance and jurisdiction to hear immigration matters
Various offences of non-compliance by individuals and corporations are set out under the 2015 Act and the Immigration Regulations,15 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,16 a fine of 1 million naira17 or potential deportation as the penalty for non-compliance with provisions relating to entry for business purposes for individuals,18 and the assignment of criminal responsibility to airline operators and commercial carriers for facilitating an immigration offence.19
Stringent penalties and expansive powers of enforcement are therefore included in the 2015 Act, while the provisions of the Immigration Regulations empower immigration officers to fully enforce and implement the Act; this can be seen particularly in respect of the powers granted to immigration officers to arrest any immigrant found committing an offence or found to have committed an offence under the 2015 Act or the Immigration Regulations, and also to enter and search any premises in which the immigration officer reasonably believes an offence under the Act or Regulations is being or is about to be committed.20 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),21 and the 2015 Act further provides for the establishment of a division under the FHC that is to be responsible for hearing all matters relating to immigration.22 There is also 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, this being a measure clearly designed to ensure that a person recommended for deportation is not remanded for an excessive period.23 Notwithstanding this provision, it should be noted that such a person can still be remanded in custody for a period of up to 90 days,24 further underscoring the importance and need for foreign nationals and their employers to remain fully compliant with the provisions of the 2015 Act at all times.
For parties wishing to bring an action against the NIS, cognisance should be taken of the need to first issue a pre-action notice before a civil action can be brought against the NIS; this requirement is in accordance with the provisions of Section 109(1) of the 2015 Act, which stipulate that 'no civil action shall be commenced against the Service or its authorised officers before the expiration of a period of 30 days after a written notice of intention to commence the suit shall have been served'.
ii The immigration authorities
As stated above, the NIS is designated under the 2015 Act as the principal body charged with responsibility for administering the Act, with the power to both sue and be sued. The responsibilities of the NIS are clearly stipulated under Section 2 of the 2015 Act and encompass the following:
- control of persons entering or leaving Nigeria;
- issuance of travel documents, including Nigerian passports, to bona fide Nigerians within and outside Nigeria;
- issuance of residence permits to foreigners in Nigeria;
- border surveillance and patrol;
- enforcement of laws and regulations with which it is directly charged; and
- performance of such paramilitary duties within or outside Nigeria as may be required of it under the authority of the 2015 Act or any other enactment.
The provisions of both the 2015 Act and the Immigration Regulations also provide clarity regarding the structure and composition of the NIS, with the head of the NIS designated as the CGI; the duties of officers in the NIS and the procedure for the appointment of immigration officers are also clearly defined, whereby the CGI and the Deputy Comptrollers General are to be appointed by the President from among serving officers in the NIS, on the recommendation of the Civil Defence, Fire, Immigration and Prisons Services Board, with the Board responsible for the appointment of assistant comptrollers general and comptrollers of immigration to assist the CGI.25
The Federal Ministry of Interior
The Ministry of Interior (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 over time, both in functions and nomenclature, the Ministry invariably continues to be involved in the immigration process, with the Minister of Interior (the Minister) being charged with responsibility for immigration,26 and assigned specific functions under the 2015 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 relevant authorities that indirectly have an impact on the application of immigration policy and procedure in Nigeria, albeit to varying degrees, include:
- 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;27
- the Corporate Affairs Commission (CAC), which administers the provisions of the Companies and Allied Matters Act (CAMA)28 – the principal legislation that governs the incorporation and regulation of the companies in Nigeria. By virtue of the provisions of the CAMA and their applicability on matters relating to foreign participation in enterprises in Nigeria, the CAC, by default, has an impact on the administration of the 2015 Act and some of the provisions therein. It is anticipated that the CAMA will soon be subject to comprehensive amendment, following the recent passage through the National Assembly of the Companies and Allied Matters Act (Repeal and Re-enactment) Bill;
- 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. All foreign investors investing in securities of Nigerian companies – except those of private companies – are expected to register with SEC;
- the Federal Inland Revenue Service, which is responsible for the collection of relevant corporate taxes as well as the individual state internal revenue services, which are responsible for the collection of personal income taxes of foreign employees working in Nigeria;
- 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 foreign migrant workers within the country, with a mandate – among other things – to establish a database on migrants within and outside Nigeria;
- 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; and
- the National Planning Commission of Nigeria, which was established by Decree No. 12 of 1992, later amended in 1993, and the functions of which include dealing with matters relating to regional economic cooperation, including the Economic Community of West African States (ECOWAS).29
- the Nigerian Content Development and Monitoring Board (NCDMB), which was established under the Nigerian Oil and Gas Industry Content Development Act of 2010 (the NOGIC Act). Part of the responsibilities of the NCDMB, pursuant to Sections 31, 32 and 33 of the NOGIC Act, relates to the administration and management of applications for expatriate quotas, succession planning and the deployment of expatriates in the oil and gas industry.
iii Exemptions and favoured industries
Among those who enjoy exempted status in respect of the immigration rules and procedures applicable to non-Nigerians entering the country are those granted the right of free movement within ECOWAS; this right of free movement is accorded to nationals of ECOWAS Member States30 under the ECOWAS Protocol on the Free Movement of Persons, Residence and Establishment. More specifically, the provisions of the ECOWAS Protocol stipulate in Article 3(2) that:
A citizen of the Community visiting any Member State for a period not exceeding ninety (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 ninety (90) days.
This provision is also preserved in Section 37(13) of the 2015 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.31 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 Immigration Regulations, which stipulate the need for ECOWAS nationals to register with the NIS to be issued with valid residence cards.32
The recently launched NVP formally recognizes citizens of countries that have entered into visa abolition agreements with Nigeria (currently citizens of Cameroon and Chad) as being permitted to travel to Nigeria without obtaining a visa for a maximum of 90 days; requisite permits or visas must, however, be obtained by these citizens where the purpose of entry is for employment or to establish a business.33
Furthermore, under the NVP, visa-free entry (whereby entry into Nigeria is permitted without a visa, but only for single entry and for a maximum period of 90 days) is granted to the following persons:
- holders of official travel documents from specific international organisations, namely the United Nations, the AU Commission, the ECOWAS Commission and the African Development Bank; and
- holders of diplomatic or official passports from countries that have entered bilateral or multilateral visa waiver agreements with Nigeria on the principle of reciprocity such as Brazil, China, Cuba, Singapore, Venezuela and Turkey.
With respect to favoured or protected industries within the Nigerian economy, it is important to note the following sectors and the relevant laws that have an impact on immigration within these industries.
Companies operating in export processing zones
Companies engaged solely in export promotion activities and operating in export processing zones (also known as free zones), benefit from a more liberalised regime for employment of expatriates. Export processing zones are areas in which businesses are exempt from the normal legal regime applicable in Nigeria, particularly with regard to some aspects of immigration procedure and also customs duty and tax; the Nigerian Export Processing Zone Authority has been established as the body with the mandate to administer the free zones scheme, both as an operator and a regulator, while the Oil and Gas Export Free Zone (OGEFZ) is specifically managed by the OGEFZ Authority. The applicable laws in respect of these zones are the Nigeria Export Processing Zone Act (the NEPZ Act)34 and the Investment Procedures, Regulations and Operational Guidelines for Free Zones in Nigeria 2004 (the NEPZ Regulations), which were issued pursuant to Section 10(4) of the NEPZ Act.35
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. Specifically, Section 25 of this Act provides that all operators in the mining industry shall be granted various benefits, including the automatic grant of an expatriate quota and residence permits for approved expatriate personnel of operators in this sector.36
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 mandates indigenous participation in oil and gas operations. 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 that is relevant to immigration law is the ECOWAS Treaty, signed in Lagos in 1975 and further revised in 1993. Nigeria was one of the biggest proponents of the establishment of ECOWAS,37 which today is a 15-member regional group and single trade area with a mandate to support integration throughout its Member States.38 As stated previously, under the provisions of the ECOWAS Treaty and pursuant 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.
Also significant is the signing by Nigeria of the Africa Continental Free Trade Agreement (AfCFTA) in July 2019; AfCFTA aims to increase trade between African countries and has been recognised by the AU as an avenue through which to create the world's largest free trade area. This is relevant in respect of the reforms being introduced by the NVP, as some of these reflect a strategic decision to bring down barriers that previously hindered the free movement of people within the continent.40 Most notably, measures such as the introduction of visas on arrival at the point of entry to all holders of passports of AU countries seem specifically designed to accelerate the process of integration on the continent.
III THE YEAR IN REVIEW
i Important changes in legislation and policy
During the course of the past year, the federal government has continued to introduce measures aimed at improving the business environment in Nigeria. Historically, one of the biggest challenges facing foreign investors seeking to invest in Nigeria has been the ease of doing business in the country (or rather the lack of ease) and accordingly the government constituted Presidential Enabling Environment Council (PEBEC)41 has continued to work towads the objective of removing constraints on doing business in Nigeria.42 In line with this ongoing commitment by the PEBEC to deliver reforms through systematic interventions, and with the intent of supporting and building on the efforts of the PEBEC, significant reforms were introduced in the NVP, the implementation and operation of which are deemed by the Minister to be cardinal to the ease of doing business in Nigeria. Specifically, some of the reforms introduced in the NVP are as follows:
- increased classes of visas: as stated previously, the NVP increases the number of visa classes to 79 in total, each with a visa code to ease processing;
- broadening of eligibility for VoA: as stated previously, the VoA channel is available at the port of entry to applicants for qualifying visa classes, including frequent business travellers, emergency relief workers and AU passport holders. This expansion of eligibility to include citizens of AU countries seems designed to accelerate the process of integration and unhindered freedom of movement on the continent; and
- use of online e-visas: this service enables intending visitors to apply online via the NIS website. The expansion of this channel to encompass a larger class of SVVs than the VoA channel is indicative of the NIS' continuing commitment to embrace technology in respect of processes and operational procedures with the aim of enhancing service delivery.
The above reforms and other changes introduced under the NVP clearly reflect a continuing effort by the authorities to promote an enhanced service delivery in the immigration sector that conforms with global best practices, while also utilising immigration as a tool for improving the business environment and attracting FDI. It is imperative, however, for the purposes of effective implementation and operation of the NVP, that necessary technology is deployed, sufficient appropriate training provided and other adequate mechanisms put in place for the benefit of the NIS, ahead of the full implementation of the NVP, to ensure enhanced delivery, consistency and professionalism in the application of the rules and the processing of visas and permits.
ii The impact of the covid-19 pandemic on immigration practice and procedure
Since the first confirmed case of covid-19 in Nigeria was announced on 27 February 2020, the ensuing pandemic has already had a major impact on immigration practice and procedure in the country. A travel ban initially placed by the government on 13 countries with high incidences of the virus had by 23 March 2020 culminated in the government's closure of all the international airports in the country, resulting in the suspension of all international flights. These measures were taken in accordance with the provisions of Section 18 of the 2015 Act, which stipulate that entry can be validly denied to those considered to be a risk to public health, the public interest or national security.
Notwithstanding the closure of the international airports, notably the seaports were directed to remain operational,43 presumably to ensure some supply chains are kept open, such as those for food and raw materials. Preventative measures were, however, introduced by the Nigerian Maritime Administration and Safety Agency, with all maritime stakeholders being directed to develop risk assessments and safety intervention guidelines for their personnel and areas of operations that could be affected by covid-19, such as crew or personnel changes.
Significantly, there has also been a suspension of the implementation or operation of the NVP and the reforms thereunder, with, most notably, the issuance of the VoA and the e-registration of migrants among the services suspended by the Nigerian government as a result of the pandemic. The expectation is that the pandemic could also potentially have a long-term impact on practice and procedure in the country.
IV EMPLOYER SPONSORSHIP
i Work permits
Where a foreign national wishes to take up employment within the private sector, the proposed employer company is required to initiate the application process to obtain consent from the relevant authorities. This requirement is pursuant to the 2015 Act and the Immigration Regulations, which categorically preclude a foreign national from accepting employment (in the private sector) without the written consent of the CGI,44 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.45
Entry for short-term services
Employers seeking to invite foreign nationals to provide specialised or skilled services or to work on special projects on a short-term basis are afforded the opportunity to do so using the Temporary Work Permit (TWP). Traditionally, the TWP, in the form of an SVV, permits single entry into Nigeria for a period of up to 90 days for foreign nationals who are invited by corporate bodies to provide specialised or skilled services. By virtue of the revisions introduced under the NVP, the TWP is also made available as a TRV, permitting multiple entry into the country for a period of up to six months, thereby enabling an engaged foreign national to visit Nigeria many times within a short period.
The authority to issue TWPs is conferred on the CGI under Section 37(8) of the 2015 Act and Regulation 8 of the Immigration Regulations, and the application may be submitted by the sponsor company, organisation or individuals, supported by evidence of the services for which the foreign national is required. Currently, the TWP is obtainable from the office of the CGI in the NIS, and it is currently issued by way of a letter of approval transmitted to the appropriate Nigerian mission.46
Entry for long-term employment
Expatriate quota approval
As the first phase of the process for foreign nationals seeking to take up employment in areas other than export promotion activities, an application must be submitted to the Ministry to secure an expatriate quota approval (EQA).47 This is the official permit granted to the proposed employer company to enable it to employ individual expatriates in specifically approved job designations, while also specifying the term of the quota grant. (Companies carrying on business in the Nigerian oil and gas industry that intend to engage the services of expatriates should also be made aware of the requirement to first obtain the approval of the NCDMB before applying for the grant or renewal of an expatriate quota.)48 Upon submission along with the requisite supporting documents and any additional information 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.49 The employer company is required, to submit a monthly report on the utilisation of the granted expatriate quota during the term of the EQA in the format prescribed by the NIS.
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 training purposes and to enable the acquisition of relevant skills by the Nigerian employee, with a view to taking over the position later.50 Renewal, while available, is subject to utilisation and proof of the requisite understudy programme and based on the merit of the submission. (Companies carrying on business in the oil and gas industry, will once again be required, when making an application for the extension of an EQA, to meet the requirements of the NCDMB, namely to provide evidence 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 temporary residence
The proposed expatriate employee seeking to take up employment in the country would next have to obtain a residence visa, 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 before the application. Under the NVP, the former Subject to Regularization (or STR) visa has been renamed the TRV and split into several classes,51 ranging from the Diplomatic Visa to the Expatriate Visa;52 details of some of the classes of TRV introduced under the NVP are provided below.
|Visa class||Visa code||Applicants||Details|
|Temporary Employment Visa (TWP) (6 months)||R11||Experts invited by corporate bodies to provide specialised skilled services||Six-month work permit; multiple entry; non-renewable; issued at Nigerian embassy, pursuant to CGI approval|
|Employment (Expatriate) Visa||R2A (Spouses and dependants of Expatriate Visa holder: R2B, R2C, R2D and R2E)||Foreign nationals wishing to take up employment in Nigeria based on expatriate quota. Evidence of expatriate quota approval (EQA) required||Two-year work permit; renewable; application by employer/institution accepting immigration responsibility; application at embassy|
|Employment Expatriate (Free Zone) Visa||R3A (Spouses and dependants of Expatriate Free Zone Visa holders: R3B, R3C, R3D and R3E)||Foreign nationals wishing to take up employment in free trade zone in Nigeria. Application outside quota provision. EQA not required;|
|Employment Expatriate (Government Official) Visa||R4A Employment (Government Official) Visa (Spouses and dependants of government officials: R4B, R4C, R4D and R4E)||Foreign nationals taking up employment as government officials in Nigeria. Governmental employment letter required|
|Employment (INGO) Visa||R5A (Spouses and dependants: R5B, R4C, R4D and R4E)||Foreign nationals taking up employment with INGO in Nigeria. Evidence of memorandum of understanding with Nigerian National Planning Commission and appropriate security clearance|
Application for a residence permit (regularisation of stay)
Under current practice, 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, the Combined Expatriate Residence Permit and Aliens Card, commonly known as CERPAC. The regularisation of stay by the expatriate employee is to be effected within 90 days of entry into the country and penalties exist for non-compliance under Section 57(5) of the 2015 Act and Regulation 47 of the Immigration Regulations; however, once obtained, the permit is valid for up to two years, and an application for renewal can be submitted to the CGI.53
Pursuant to a review in 2018 and subsequent increase in CERPAC fees by 100 per cent, a lawsuit was instituted against the Minister and CGI, contending that the increase was illegal.54 It was further contended that Continental Transfert Technique Ltd (CONTEC), a company engaged to provide services in respect of CERPAC fee payments by expatriates in the country, was not an official government company but a private company that had usurped and performed the statutory duties of the CGI. As a court of first instance, The Federal High Court declared the contract between the Ministry and CONTEC for the collection of CERPAC fees to be unconstitutional and ruled that only the NIS was lawfully empowered to collect these fees. A notice of appeal was subsequently filed at the Court of Appeal by the Minister and the NIS, contending that the judge was wrong to treat the increase in CERPAC fees as a constitutional issue rather than a simple contractual issue between two parties; an application was also made to the Federal High Court judge to stay execution of the judgment pending determination of the appeal. The appeal is still pending, with the application for stay having been granted on the 3 March 2020. As a result, the increase in CERPAC fees subsists, pending the final determination of the appeal.
ii Labour market regulation
It is recommended that account be taken of labour laws and applicable regulations, which cover both expatriate and non-expatriate workers alike, particularly the provisions of the Labour Act55 and related labour regulations.56 Also of key importance are the applicable guidelines, such as the NCDMB 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).57
To encourage technology transfer, the 2011 Guidelines provide for the specific procedures to be followed for applications for expatriate quota approval, whereas, in a bid to preserve local jobs, the 2015 Guidelines impose an obligation on employers to seek the consent of the director of the DPR prior to disengaging an employee, and impose stiff penalties for non-compliance with their 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.58
iii Rights and duties of sponsored employees
After undergoing the various legal formalities required for residence status within the country, sponsored employees are required to register their presence at the immigration offices closest to their place of residence or occupation. With regard to specific 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 the conditions are not inconsistent with the provisions of the 2015 Act, by virtue of Section 37(5) of the 2015 Act. Cognisance should also be taken of additional duties stipulated in the provisions of the Immigration Regulations, which are required to be discharged generally by foreign nationals residing or staying in Nigeria, including but not limited to the following requirements:
- 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;
- to produce a certificate of registration upon demand by the immigration officer and such specific information as may be requested by the immigration officer;
- to give notice to the immigration officer where a change of residence to another place within the state is intended, with the notice to be given at least seven days before any such change; and
- 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, with the notice to be given at least seven days before the change occurs.59
As observed above the residence permit issued to sponsored employees is a temporary one, for a period of up to two years, subject to renewal, and the opportunities afforded to a sponsored employee to eventually qualify for permanent residence under Nigerian immigration law are quite limited. The NVP does, however, cater specifically for foreign nationals who retire in Nigeria after 20 years of service, who may apply for a retirement visa; classes of visas are also available to their dependants. Additionally, employees who are married to Nigerian citizens are also afforded the opportunity of permanent residence in the country, irrespective of the class of visa with which the employee first entered Nigeria, and provided also that any conditions imposed have been complied with.
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
With respect to entry into Nigeria for business purposes, Nigerian law is unequivocal in its preclusion of any person other than a citizen of Nigeria 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 in the form of a grant of a business permit.60 Additionally, the provisions of the 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 establishing and carrying on business or engaging in self-employed activities 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:
- ensuring the incorporation of a local company for the purpose of carrying on business,61 in accordance with the applicable provisions of CAMA and other relevant statutes;62
- 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
- procuring the written authorisation of the Minister for the establishment of such a business in Nigeria, in the form of a permit.
Investors seeking to invest in the long term should also be aware of provisions in both the 2015 Act and the Immigration Regulations,63 which enable high-net-worth investors that invest a minimum 'threshold of capital' over a period64 to be granted permanent residence status; the permanent residence permit, once issued, may, however, be revoked if the foreign national withdraws the investment from Nigeria.65 See the table below for further details about the threshold of capital to be reached by foreign nationals seeking to invest and reside in Nigeria, as provided under the NVP:
|Visa class||Visa code||Applicants||Details|
|Investor Visa||N3A (Small Enterprise)||Foreign nationals seeking to invest and reside in Nigeria||Up to five years residence permit; renewable; multiple entry; evidence of US$250,000 to US$500,000 as importation and retention of investors capital; proof of investment in Nigeria; application at embassy|
|Investor Visa||N3B (Medium Enterprise)||Up to five years residence permit; renewable; multiple entry; evidence of US$500,000 to US$1million as importation and retention of investors capital; proof of investment in Nigeria; application at embassy|
|Investor Visa||N3C (Large Corporation)||Up to five years residence permit; renewable; multiple entry; evidence of US$1million to US$10million as importation and retention of investors capital; proof of investment in Nigeria; application at embassy|
|Investor Visa||N3D (Ultra Large Corporation)||Up to five years residence permit; renewable; multiple entry; evidence of US$10million or more as importation and retention of investors capital; proof of investment in Nigeria; application at embassy|
|Investor Visa||N3E (Oil/Gas/Power)||Foreign national investors in oil, gas and power sector||Up to five years residence permit; renewable; multiple entry; evidence of US$100million as importation and retention of investors capital; proof of investment in Nigeria; application at embassy|
With respect to foreign entrepreneurs and investors who wish to enter Nigeria on a short-term basis, possibly to attend a business meeting, for contract negotiations or to pursue investment opportunities in the country prior to the establishment of any long-term presence in Nigeria, applications can be submitted for the issuance of a business visa, which is obtainable from the Nigerian diplomatic mission in the applicant's country of residence. Under the NVP, the business visa is separated into different classes of SVVs, available either for single entry or multiple entry. One of the classes of business visa, the F4C, is obtainable as a VoA, which may be issued at the port of entry. This class of business visa is, however, only available for frequent business travellers with an investment amount of the value of US$250,000 in Nigeria. Applicants should note also that all business visas, irrespective of the class, are granted for a period not exceeding 90 days and are issued on the premise that the recipient will not engage in any form of paid employment.
Highly skilled migrants are also now afforded an avenue for entry into Nigeria, with a renewable multiple-entry permit provided for under the NVP, which may be applied for at the Nigerian embassy. This PRV is geared towards foreign nationals who possess the knowledge and abilities deemed highly skilled in areas considered relevant to current and future needs of the Nigerian economy, subject to recommendation by the National Scarce Skills Audit.
VI OUTLOOK AND CONCLUSIONS
The systematic reforms and policy changes that have been initiated for the purpose of facilitating the ease of doing business in Nigeria, particularly many of those introduced under the NVP, recognise the use of immigration as a veritable tool for attracting FDI into the country and as an avenue for making a significant contribution to the nation's economic growth. Many of these changes are therefore a welcome development and represent continuing steps in the right direction towards bringing immigration practice and procedure in Nigeria into greater alignment with global best practices. This is particularly significant given that Nigeria has historically been a major business hub for West Africa and therefore a gateway to Africa as a whole.
However, following the recording of the first covid-19 case in the country in February 2020, a number of necessary preventative measures taken in the short term have resulted in a suspension of the previously ongoing implementation of the NVP and also curtailed migration into the country.66 Therefore, although the pandemic has not been viewed primarily as an immigration matter, it has essentially been treated as one in practice.
While it is anticipated that these short-term preventative measures will eventually be lifted, and the disruptions caused by covid-19 will gradually lessen, the growing expectation now is that the pandemic will have a long and lasting impact on immigration practice and procedure both in Nigeria and globally.
1 Adekemi Sijuwade is a partner at Advocaat Law Practice. The author would also like to thank Mr Ola Alokolaro, head of the firm's energy and infrastructure group, and Mrs Omolola Balogun, an associate at the firm, for their assistance in the preparation of this chapter.
2 Section 112(1) of the 2015 Act empowers the Minister of Interior to make such regulations as are in his or her opinion necessary or expedient for giving full effect to the provisions of the 2015 Act, and for the due administration thereof.
3 See Part I, Regulation 1 of the Immigration Regulations.
4 Section 1 of the 2015 Act.
5 The NVP also makes a clear delineation between travellers who are permitted entry into Nigeria without a visa (in the Visa Free/Waiver/Exemption Category) and all other travellers, who are mandatorily required to procure a visa for entry into the country (in the Visa Mandatory Category).
6 Applications can be submitted online via the NIS portal.
7 Where a visa application is submitted to the diplomatic mission established abroad, the visa shall be issued by the immigration attaché or any other officer designated for the purpose by the head of the mission, pursuant to Section 20(3) of the 2015 Act.
8 The AU is a continental body consisting of the 55 Member States that make up the countries of the African continent. It was officially launched in 2002 as a successor to the Organisation of African Unity and is guided by its vision of an integrated prosperous and peaceful Africa.
9 Classes of visas available for VoA: business visa for frequently travelled executives (F4C); tourism visa (F5A); emergency relief work visa (F7K); and visa for returning holders of other passports who are Nigerians by birth (F9A). Citizens and holders of passports of AU countries are also eligible for VoA.
10 Section 19(6)(b) and (c) of the 2015 Act.
11 Section 19(6)(d) of the 2015 Act.
12 Section 18(1)(c) and 19(6)(a) of the 2015 Act. A prohibited immigrant is further defined in the provisions of the 2015 Act as a person liable to be refused entry or deported under Section 44 of 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 and anyone whose admission would, in the opinion of the Minister, be contrary to the national interest or security.
13 Section 18(1)(d) of the 2015 Act.
14 Section 18(1)(e) of the 2015 Act. By virtue of Section 19 of the 2015 Act, the power to deny entry into Nigeria, or to admit persons into Nigeria subject to conditions, is to be exercised by notice in writing, which is to be delivered by the immigration officer to the person to whom it relates.
15 See Sections 56–60 and Sections 105 and 106 of the 2015 Act; see also Immigration Regulations 44–53.
16 Section 105(2) of the 2015 Act.
17 The official exchange rate at the time of writing is approximately 367 naira to US$1.
18 Section 36(2) of the 2015 Act.
19 Section 106 of the 2015 Act.
20 Immigration Regulations 34 and 35.
21 Section 96 of the 2015 Act.
22 Section 96(2) of the 2015 Act.
23 Section 48(1) of the 2015 Act.
24 Section 48(1) of the 2015 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, where it appears to the Minister that it should be wound up.
25 Section 3 of the 2015 Act.
26 As defined in, Section 116 of the 2015 Act.
27 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).
28 The Company and Allied Matters Act, Cap C20, LFN 2004.
29 The detailed objectives, functions, powers and structure of the National Planning Commission are outlined under Sections 2, 3 and 5 of the Establishment Act.
30 The Member States of ECOWAS are: Benin, Burkina Faso, Cape Verde, the Gambia, Ghana, Guinea, Guinea-Bissau, the Ivory Coast, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo. Although Mauritania was a founding member, it has since withdrawn from the group, while a request for membership of the group has also been submitted by Morocco.
31 Provided that such citizens register with the NIS as ECOWAS nationals; see Section 37(13) of the 2015 Act.
32 Regulation 5(9).
33 Note that, notwithstanding the freedom of movement accorded to citizens of both ECOWAS countries and visa abolition countries, all are subject to the following entry conditions: they must be in possession of a valid travel document; they must enter Nigeria through a recognised entry point; they must have means of subsistence while in the country; and they must not be in the category of prohibited immigrants,
34 Nigeria Export Processing Zone Act, Cap N107, LFN 2004.
35 By virtue of the provisions of these pieces of legislation companies operating in export zones are permitted to employ foreign managers and personnel as required, without the requirement to obtain expatriate quotas. The relevant provisions are Section 18 of the NEPZ Act and also Part 9 of the NEPZ Regulations, which provides that all approved enterprises operating in these zones are exempt from procuring expatriate quotas.
36 By virtue of Section 25(1)(b) of the Nigerian and Mining Minerals Act 2007.
37 Nigeria is a founding member of both ECOWAS and the Organisation of African Unity (OAU), a body consisting of all 55 African countries; excerpts taken from the 'Country Profile' analysis in The Report: Nigeria 2017, Oxford Business Group, p. 22.
38 In June 2017, the leaders of ECOWAS met to discuss Morocco's request for membership of the group, which was accepted 'in principle' by leaders of the group.
39 By virtue of Section 37(13) of the 2015 Act.
40 The NVP represented an opportunity for the application of the principle of reciprocity in respect of Nigeria's bilateral and multilateral relations; this is evidenced in the clear delineation of visa-free entry, separating certain passport and document holders from those mandatorily requiring visas for entry into the country.
41 The PEBEC is an inter-ministerial, intergovernmental council, constituted by the President and chaired by the Vice President of Nigeria, and comprising no fewer than 10 ministers, the head of the civil service of the federation, the governor of the Central Bank of Nigeria and representatives from the National Assembly, state governments and the private sector.
42 The PEBEC was established in 2016 to oversee Nigeria's business climate reform agenda, and is chaired by Vice President Yemi Osinbanjo, with the Minister of Industry, Trade and Investment Okechukwu Enelamah as the vice chair.
43 Notwithstanding the continuing operation of the seaports, the directive in place is for entry to be denied to any international marine vessel or any member of its crew therein with a travel history including any of the covid-19 affected countries since 1 February 2020, with effect from 30 March 2020. Additionally the Nigerian Maritime Administration and Safety Agency requires that pre-departure tests for covid-19 be conducted on new crew or crew changes from affected countries, with self-isolation procedures being put in place for a prescribed period for any such crew or personnel. This measure was taken by the Agency to ensure the safety of its personnel while carrying on its various activities.
44 By virtue of Section 36(1) of the 2015 Act and Regulation 12(3) of the Immigration Regulations.
45 By virtue of Section 36(2) of the 2015 Act.
46 See Regulation 8 of the Immigration Regulations.
47 See Regulation 12 of the Immigration Regulations regarding the authority of the Minister to issue the EQA.
48 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.
49 Under Regulation 12(2) of the Immigration Regulations, a stay of action may be issued by the Minister during the pendency of a renewal application; 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.
50 Under Regulation 52 of the Immigration Regulations, a corporate entity is required to engage Nigerian employees to understudy expatriate employees, and refusal to comply with this provision is an offence, as is the use by an unauthorised organisation of expatriate quota positions granted to another organisation (see Regulation 52(7–8) of the Immigration Regulations). Restrictions on the granting of EQAs are also further emphasised in the provisions of Presidential Executive Order 5 for Planning and Execution of Projects, Promotion of Nigerian Content in Contracts and Science, Engineering and Technology of 2018, which stipulate the need for the Ministry both to desist from giving visas to foreign workers whose skills are readily available in Nigeria and to ensure that EQAs are granted for projects contracts and programmes only where the qualifications and competency of Nigerian nationals are not available or cannot be ascertained. These provisions underline the increased scrutiny to which the use of the expatriate quota process has or is being subject.
51 Of the 36 different visa classes available to expatriates seeking to take up employment in Nigeria, only one, the R2A, caters for expatriates intending to work within the quota provision in Nigeria, although other classes of visa are available to accommodate other expatriate positions and the dependants of the principal expatriate.
52 At the time of writing, the NVP has yet to be fully implemented and this process is currently suspended, primarily because of the ongoing coronavirus pandemic.
53 Account should also be taken of the directive of the CGI, which became effective from 1 January 2018, making the renewal of residence permits held by foreign nationals residing in Nigeria conditional upon their possession of a National Identification Number (NIN). This initiative by the NIS to harmonise NIN and passport numbers is intended to facilitate immigration-related processes and procedures, and forms part of ongoing efforts by the NIS to improve the ease of doing business in the country.
54 Suit by Femi Falana against the Minister of Interior, the Comptroller General of the NIS and CONTEC Ltd.
55 Cap L1, LFN 2004.
56 Cognisance should also be taken of applicable international treaties ratified by Nigeria, including its ratification of the International Labour Organization Employment Convention, by virtue of Section 37 of the Labour Act, which enables cognisance of international agreements ratified by Nigeria.
57 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.
58 Since their 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.
59 See Regulations 18, 26 and 33(1) of the Immigration Regulations.
60 By virtue of Section 36(1)(b) of the 2015 Act and Regulations 4 and 12 of the Immigration Regulations.
61 Section 56 of the CAMA. It should be noted, however, that the requirement that a foreign company first be incorporated as a separate entity in Nigeria before carrying on business in the country may be waived if it is engaged solely in export promotion activities or if it falls within one of the other categories provided for in the CAMA.
62 Section 54 of the CAMA. The NIPC Act also makes it a requirement for any enterprise with foreign participation to be incorporated with the CAC and NIPC before it can commence business in Nigeria. The relevant provisions that relate to foreign participation are under Sections 17–21 of Part V of the NIPC Act.
63 Regulation 5(7) of the Immigration Regulations and Section 37(11) of the 2015 Act.
64 By virtue of Section 37(11) of the 2015 Act, the threshold capital would be determined from time to time in the national visa policy or any other policy.
65 Regulation 5(7) of the Immigration Regulations.
66 Indeed, several of the covid-19 related preventative measures taken in Nigeria, such as the suspension of international flights into the country, are reflective of similar measures adopted all over the world in various countries, territories and areas, which at the time of writing have culminated in a global cessation of movement that is unprecedented in modern times.