I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Kenya is situated in eastern Africa. Nairobi is the capital of the country and a regional commercial hub. Kenya is a founding member of the East African Community (EAC), which will be explained in detail below. Its currency is the Kenyan shilling and its current population is 48.46 million. Kenya is a linguistically diverse country; despite having two official languages, English and Swahili, each ethnic group has its own dialect.
The Republic of Kenya was founded in 1963. The country has 47 counties and the government is divided into three branches: the legislature, the executive and the judiciary. The current structure of government allows power to be held on two levels, national level and county level. This allows the counties of Kenya a degree of autonomy. Before the 2013 elections, Kenya had a central government and the country was divided into eight provinces.
The country is a democracy and the Constitution provides that the state shall be a multiparty democratic state founded on national values and principles of governance. Following the fourth schedule of the Kenyan Constitution of 2010, the distribution of functions between the national government and the county governments assigned immigration and citizenship to the national government. Kenya went through presidential elections in August 2017, but the result was nullified by the Supreme Court, leading to further presidential elections in October. Two main rivals, Uhuru Kenyatta and Raila Odinga were competing, but, in the end, Odinga boycotted the elections and President Uhuru Kenyatta was returned to office.
Kenya’s largest foreign exchange-earning sector is agriculture, accounting for 25 per cent of gross domestic product (GDP) and 70 per cent of the total workforce, followed by the tourism industry, contributing 10 per cent of total GDP in 2017 and 9.1 per cent of employment. Overall, GDP is expected to grow by 6 per cent in 2018, mostly because of the completion of infrastructure projects, credit growth and the strengthening global economy and tourism.
i Legislation and policy
The legal system in Kenya is based on the English common law system. The Judicature Act 1967 sets out the sources of law in Kenya as follows: written laws (statutes); common law; doctrines of equity; statutes of general application in force in England on or before 1897; and African customary law. The application of common law and doctrines of equity are subject to Kenyan statutes. African customary law applies to the extent that it is consistent with written laws and is not repugnant to justice and morality. The Constitution of Kenya, which is the supreme law of the land, states that the general rules of international law and treaties and conventions that have been ratified by Kenya also form part of its laws.
The Kenyan immigration system in general is organised in categories and does not contain a quota or scoring system, which is used in many other immigration systems, such as the United Kingdom or Nigeria. In Kenya, the immigration system works with permits and passes with respect to the legal sojourn of foreigners in the country. The Kenyan Citizenship and Immigration Act of 2011 (the Act of 2011) of the Laws of Kenya provides the framework for national migration policy, along with the Kenya Citizenship and Immigration Regulations 2012 (the KCI Regulations); these repealed the previous Immigration Act and Citizenship Act and constitute the key legislation in relation to the issuance of permits.
Also notable in this context is Kenya Vision 2030, the government’s national planning strategy. This development programme is being implemented through a series of five-year medium-term plans that began in 2008 and continue up to 2030. Besides these, there are several related regulations that affect immigration control in Kenya, such as the Refugees Act, the Security Laws Amendment Act, the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, the Counter Trafficking in Persons Act, and the Kenya Citizens and Foreign Nationals Management Service Act.
Foreigners visiting Kenya are required to obtain a visa, unless they are from one of the visa-exempt countries.2 Visas can be obtained online via the e-visa web page or on arrival for a higher fee. All visitors must hold a passport valid for six months. Citizens of visa-exempt countries can visit Kenya with no visa for stays of up to 90 days (except South African and Malaysian nationals, who are limited to 30 days). Citizens of Burundi, Rwanda, South Sudan, Tanzania and Uganda can enter Kenya with an ID card and are allowed to work, do business, own property, farm, marry and settle in Kenya. This policy was introduced in Uhuru Kenyatta’s inauguration speech on 28 November 2017.
Nationals of some countries3 are required to apply for a visa before departing for Kenya. Applicants from these visa-restricted countries cannot obtain their visa online; instead the application is referred to the Director of Immigration Services for processing and approval.
As mentioned above, travellers from non-visa-restricted or non-visa-exempt countries must obtain a visa prior to arrival. To make this procedure as convenient as possible, the government introduced its e-visa service in July 2015 and the e-visa process became compulsory from 1 September 2015 onwards. Foreigners can easily apply online through the e-visa section for the purposes of business, family or tourist visits. Furthermore, the e-business system allows individuals owning businesses to access government business services online to apply for business licences, permits and registrations offered by different government departments.
ii The immigration authorities
The Ministry of Interior and Coordination of National Government was created through Executive Order No. 2/2013. It is charged with various mandates, including citizenship and immigration policy and service. Within this Ministry, the Directorate of Immigration and Registration of Persons is responsible for population registration and maintenance of a comprehensive population register, migration management, border control and refugee welfare supervision. The Directorate’s vision is to ‘be a global leader in population registration and migration management’.
The Directorate itself operates through the following five functional departments:
- the National Registration Bureau, which is responsible, inter alia, for the identification and registration of the production and management of a comprehensive database of all registered persons and the detection and prevention of all illegal registration;
- the Department of Refugee Affairs, which is in charge, inter alia, of refugee registration and status determination, coordination of provision of services to refugees and the issuance of identification cards and movement passes to refugees in the country. Additionally, it is responsible for making recommendations for Class M permits to enable refugees to work and engage in business for subsistence, and for issuing exit stamps for those exiting Kenya;
- the Civil Registration Department, which deals comprehensively with Kenya’s births and deaths, as well as legitimation and recognition processes;
- the Department of Immigration Services, where the core functions of immigration are bundled, including the formulation of national migration policy and review of immigration laws and regulations, control and regulation of entry and exit of all persons, removal of prohibited immigrants, issuance of Kenyan passports and other travel documents, control and registration of residency by issuance and renewal of entry or work permits and other passes, entry visas, the granting of citizenship to qualifying foreigners and the registration of all non-citizens resident in Kenya. Furthermore, the Department is responsible for provision of consular services to nationals and foreigners at Kenyan embassies and the enforcement of all relevant legislation; and
- the Integrated Population Registration System, which is the custodian of the national population register (NPR) for all Kenyans and is entrusted with the management, operation and maintenance of an integrated and reliable population registration system.
Other authorities include:
- the Ministry of Devolution and Planning, which was created as a centre of excellence in planning, service delivery transformation and devolution for a high quality of life for all Kenyans. Its mission is to provide leadership, coordination, an enabling environment for planning, transformed public service delivery and management of a decentralised system of government. It is not directly involved in the field of Kenyan immigration but has influenced Kenyan immigration law in practice through its statements in the very recent past;
- the Refugee Consortium of Kenya (RCK), commonly referred to as ‘Haki House’ (Right House) by refugees. The RCK is a national non-governmental organisation (NGO) that was established in 1998. The RCK’s mission is to promote and protect the rights and dignity of refugees, asylum seekers, internally displaced persons and other forced migrants in Kenya and the wider East Africa region. It was established as a response to an increasingly complex and deteriorating refugee situation in Kenya and the region; and
- the United Nations Refugee Agency, which is – along with the Department of Refugee Affairs – responsible for the Class M work permit issued to conventional refugees.
iii Exemptions and favoured industries
Like most other African states that are also focused on the exploitation of natural resources, Kenya favours the prospecting of minerals and mining in general with mining rights or licences under the Class A work permit. Under the Class B work permit, agriculture and animal husbandry can also be regarded as favoured industries by Kenya. Citizens of East African Community (EAC) countries do not require a work permit.
II INTERNATIONAL TREATY OBLIGATIONS
Of all the international treaties to which Kenya is party (and there are more than 200 of these), two need to be mentioned in particular: the Treaty for the Establishment of the East African Community (the EAC Treaty) and the agreements establishing the African Union (AU).
The former is a fairly young regional intergovernmental organisation of six partner states: Burundi, Kenya, Rwanda, South Sudan, Tanzania and Uganda, with its headquarters in Arusha, Tanzania. The work of the EAC is guided by the treaty that established the EAC. It was signed on 30 November 1999 and entered into force on 7 July 2000 following its ratification by the original three partner states: Kenya, Tanzania and Uganda. Rwanda and Burundi acceded to the EAC Treaty on 18 June 2007 and became full members of the EAC with effect from 1 July 2007. South Sudan acceded to the EAC Treaty on 15 April 2016 and became a full EAC member on 15 August 2016.
From November 2017 onwards, EAC nationals will only have to show their national ID to enter Kenya and secure work. In September 2017, the Directorate of Immigration announced the launch of the Kenyan EAC e-passport. All new passport applicants should be issued the e-passport, while existing passport holders must apply to obtain an e-passport before 31 August 2019.
More importantly, the EAC Common Market Protocol allows workers from any partner state to accept employment within any other EAC country. They cannot be discriminated against on the basis of their nationality. Additionally, EAC citizens have the right to establish their business in any partner state and pursue economic activities in accordance with the national laws of the partner state.
The AU strives to move in the same direction, with its future goals of creating a free trade area, a customs union, a common currency (thereby establishing an economic and monetary union), a central bank and a single market. All these targets can easily be achieved through the implementation of a continent-wide establishment of harmonised standards through the introduction of radical changes to the Member States’ respective national immigration legal frameworks.
III THE YEAR IN REVIEW
Despite having general elections in the second half of 2017, a few other changes did take place during the year. The newly re-elected President Uhuru Kenyatta focused on implementing changes that enhance trade, security and intercontinental travel.
The most practical change is the implementation of the visa on arrival for all citizens of African countries, and to enter and secure employment, EAC citizens require only their national ID.
Other important changes in the country regarding the immigration laws were those introduced by the Statute Law (Miscellaneous Amendments) No. 11 of 2017 contained in the Kenya Gazette Supplement No. 54 (Acts No. 11 of 2017). The following areas were addressed in the amendments:4
- spouses of Kenyans applying for citizenship must have acquired residence status in Kenya in addition to being married for seven years before applying for citizenship;
- migrants and stateless persons were allowed two more years to apply for citizenship under Sections 15 and 16 of the Kenya Citizenship and Immigration Act 2011; therefore, from 2011 to 2018 altogether. This period may be extended by the Cabinet Secretary for another three years, thus making a total of 10 years;
- renunciation of citizenship: previously, the law only allowed Kenyan citizens by birth to renounce their citizenship, but the amended Law now allows citizens by registration to renounce as well, upon application in the prescribed manner;
- dependants qualify for permanent residence (PR): previously, Section 37 of the Act only allowed the applicant and the applicant’s children to qualify for PR, subject to meeting the requirements. An amendment to Section 37 now allows dependants of PR holders to apply also. ‘Dependant’ is defined as: ‘means a person who by reason of age, disability or any status of incapacity is unable to maintain himself or herself adequately and depends on another person for his or her maintenance’.
- widows and widowers of Kenyan citizens now qualify for PR. Previously the law only considered spouses of Kenyans. The amendments do not say how long widows and widowers should have been married before the Kenyan spouse passed on for them to qualify; and
- appeals: previously, anyone not satisfied with a decision of the Director of Immigration Services was required to appeal to the High Court for review. The amendments provide for an appeal to the Cabinet Secretary for a review of such decisions, and thereafter to the High Court if not satisfied with the decision of the Cabinet Secretary. What this amendment has done is bring back an administrative process that was in the repealed Immigration Act.
IV EMPLOYER SPONSORSHIP
Work and residence permits are issued for long-term specific employment, investment, trade and professions, to persons whose presence and engagement will be of benefit to Kenya. Special short-term permits may also be issued, which are valid for 90 days.
Like many other African countries, Kenya also distinguishes between a permit to conduct work and an admission to sojourn in the country. The latter is assured and allowed through an ‘alien card’ issued to foreigners. In other words, to legally enter the country, foreigners are granted a visa,5 which is issued under the conditions outlined at Section I.i, above, and strictly in accordance with the provisions of categories 1, 2, 3 and 5 of the Kenya Visa Regulations 2010.
Work or residence permits are issued to any non-Kenyan wishing to engage in employment in Kenya whether in gainful employment or voluntary service. The work or residence permits issued by the Department are classified from ‘A’ to ‘M’, inclusive. They are issued under the Kenyan Citizenship and Immigration Act of 2011 of the Laws of Kenya. Passes are also issued for other activities not directly connected with work; these are the student pass, dependant pass and special pass, which are explained in detail at Section IV.ii, below.
i Work permits
The following are the various classes of permits:6
- Class A: for persons who intend to engage in prospecting for minerals or mining;
- Class B: for persons wishing to invest in agriculture;
- Class C: for members of prescribed professions who intend to practise that profession, whether alone or in partnership in Kenya;
- Class D: for persons who are offered specific employment by a specific employer, the government of Kenya or any other person or authority under the control of the government or an approved technical aid scheme under the United Nations or some other approved agency (not being an exempted person), who is in possession of skills or qualifications that are not available in Kenya and whose engagement in that employment will be of benefit to Kenya;
- Class F: for applicants who intends to engage, whether alone or in partnership, in a specific manufacturing business in Kenya;
- Class G: for investors in specific trade, business, consultancy or profession;
- Class I: for members of a missionary society, a member of a company limited by guarantee, a member of a trust registered under the Trustees Act approved by the Government of Kenya and whose presence is beneficial to the country;
- Class K: for persons not under the age of 35 who have a guaranteed annual income (currently US$24,000) derived from outside sources or from a pension or annuity and who undertake not to accept paid employment of any kind; and
- Class M: for conventional refugees.
It is illegal for any non-Kenyan to enter or work in Kenya without a valid work permit. The exact provisions of the Immigration Act are as follows:
Subject to this Section, no person who is not a citizen of Kenya shall enter Kenya unless he is in possession of a valid entry permit or a valid pass.
Subject to this Section, the presence in Kenya of any person who is not a citizen of Kenya shall, unless otherwise authorized under this Act, be unlawful unless that person is in possession of a valid entry permit or a valid pass.
A person who, not being a citizen of Kenya, engages in any employment, occupation, trade, business or profession, whether or not for profit or reward, without being authorized to do so by an entry permit . . .
shall be guilty of an offence and be liable to a fine not exceeding twenty thousand shillings or imprisonment for a term not exceeding one year or to both.
This section provides for a similar penalty for:
Any person who employs any person (whether or not for reward) whom he knows or has reasonable cause to believe is committing an offence under paragraph (f) by engaging in that employment.
If convicted of these offences, any person who is not a citizen of Kenya and is not in possession of a valid entry permit or pass will invariably face deportation. The fact that an application for a work permit has been lodged does not entitle someone to work in Kenya, and cannot therefore be a defence in the event of a criminal prosecution.
Under Section 37 of the Citizenship and Immigration Act 2011, the following categories of applicants, their children and spouses are eligible, upon meeting the prescribed requirements, to apply for permanent residence. In normal practice, holders of permanent residence are expected to be domiciled in the country.
Category A is for applicants who were Kenya citizens at birth but now:
- have renounced or lost citizenship status;
- are denied the opportunity by their countries of domicile from holding dual citizenship; and
- the children and spouses of the above-mentioned applicants.
Category B is for:
- applicants who have:
- held a work permit for at least seven years; and
- have been continuously resident in the country for three years immediately preceding the permanent residence application; and
- the children and spouses of the above-mentioned applicants.
Applicants must provide proof of lawful residence on work permits for a minimum of seven years, with three years’ continuous residence in Kenya preceding the application for permanent residence. Applicants must be in a demonstrably strong position to make a tangible contribution to the socio-economic development of the country, and priority will, therefore, be given to investors and highly qualified professionals. Applicants may be required to appear in person for interview to confirm or verify these facts.
Category C is for children of Kenyan citizens born outside the country who have acquired foreign citizenship of their country of residence or domicile. Note that applicants may qualify for Kenya citizenship.
Category D is for spouses of Kenyan citizens who have been married for at least three years. Applicants must give ample proof of marriage and family life besides documentation furnished. Applicants may be required to appear in person for interview to confirm or verify these facts. A joint sworn affidavit by the spouses should be attached if the marriage was not solemnised in Kenya.
The following passes allow a foreigner to remain for a certain purpose:
- student pass: this document is issued to persons seeking to enter and remain in the country for the purpose of receiving education or training at an educational or training establishment within the country where he or she has been accepted as a student;
- internship or research pass: this document is issued to persons who have been accepted as a researcher or intern at an institution within Kenya and whose stay shall not exceed 12 months;
- dependant pass: this document is issued to applicants to allow their dependants to enter and remain in the country;
- special pass: this document is issued to persons given specific employment by a particular employer for a short duration not exceeding three months in which they are receiving education or training at an educational or training establishment within the country where he or she has been accepted as a student;
- visitor’s pass: this document is issued to persons who wish to enter Kenya for the purposes of a holiday or visit for a period not exceeding six months.
- transit pass: this document is issued to persons who intend to enter Kenya for purposes of travelling to a destination outside Kenya and who are in possession of such valid documents as may be required to enter the other destination country and as required by the laws in force in that country. This pass is valid for a period not exceeding three days; and
- prohibited immigrant or inadmissible person’s pass: this document is issued to persons who are prohibited immigrants or inadmissible persons.
Given its duration, the special pass is mostly comparable to a short-term work permit or visa, which exists in most other African states. As its name indicates, the dependant pass is a suitable solution for dependants who wish to accompany the main applicant and who can be included as dependant pass holders on the main applicant’s passport; for example, family members who are dependent on the applicant, such as a spouse and children or any other person who, by reason of age, disability or incapacity, is unable to maintain himself or herself adequately or for some other reason relies upon the applicant for his or her maintenance. Like most other African states, life partnerships and same-sex marriages are not recognised in Kenya; therefore, spousal dependant passes are only available to those in heterosexual relationships.
Dependants must apply for re-entry passes, which will be included in their passports. The re-entry visas are issued to dependants to avoid having to obtain a new visa every time they re-enter Kenya.
It should be noted that these family members cannot engage in any employment in Kenya. There are several circumstances under which a dependant’s pass may be invalidated. For instance, if the dependant engages in employment or other income-generating activities; where a dependant who was previously a child has attained the age of 21; and where the dependant ceases to depend on the applicant. To qualify as such, children must be under 18, and parents or grandparents must be entirely dependent on the applicant. Additionally, the main applicant must have sufficient income to support his or her dependants.
Alien card (foreign national certificate)
Registration of foreign nationals is governed by the Kenya Citizenship and Immigration Act of 2011, Part VII. The law requires that all foreigners who wish to reside within Kenya for a period exceeding 90 days must be registered. Section 2 of the Alien Restriction Act (now repealed) defined an alien as any person who is not a citizen of Kenya. Under Part I of the newly enacted Kenya Citizenship and Immigration Act of 2011, a foreign national is defined as any person who is not a citizen of Kenya. The application for the foreign national certificate is submitted to the Department of Immigration and includes taking the applicant’s fingerprints. Note that the provisions of Section 56(2) apply to every foreign national of or above the age of 18 years except for the following groups of people:
- a serving member of the armed forces or the armed forces of a friendly power; their spouses and children;
- a public officer, his or her spouse and children;
- a person exempt from the provisions of the Act of 2011 under Section 34(3);
- a refugee registered under the Refugee Act of 2006; and
- a person who resides in Kenya for a continuous period not exceeding three months and who is in possession of a valid visitor’s pass or other authority under the Act of 2011.
Appeals are regulated by Section 57 of the Act of 2011, which stipulates that:
Any person aggrieved by a decision of a public officer made under this Act may apply to the High Court for a review of the decision. An appeal against the decision of the Cabinet Secretary or of the Service under this act may be made to the High Court.
The Statute Law Bill of 2016 amended Section 41 of the Act of 2011 to allow the Cabinet Secretary to hear appeals of decisions of the permits determination committee. The Bill also provided that the Cabinet Secretary’s decision can be further appealed within a period of 90 days. The upshot of this is that appeals of immigration decisions can be taken either to the High Court or to the Cabinet Secretary.
Applications for renewals of long-term work permits are subject to the same requirements as the initial application. Every work permit may be renewed for further periods upon payment of the renewal fee, but it shall not be renewed for more than five years from the date of issue or renewal. The latter limits the overall duration of a work permit to five years.
v Departure or deregistration notification
Deregistration in Kenya is only required if the applicant wants to start employment with another company and therefore wants to apply for a new work permit. If the applicant is leaving the country for good within the period of validity of the current work permit, no deregistration or departure notification is required.
vi Labour market regulation
Firstly, the Constitution of Kenya prohibits discrimination either directly or indirectly against any person on the basis of race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Since the legislation of Kenya has to be in line with its Constitution, this strongly influences the regulation of the local labour law.
The Kenyan labour market is regulated by the Employment Act 2012, which repealed the Employment Act 2007, the Labour Institutions Act No. 12 of 2007, the Labour Relations Act No. 14 of 2007, the Work Injury Benefits Act (WIBA), the Occupational Safety and Health Act (OSHA) No. 15 of 2007, the Industrial Training Act and various wage orders that provide for minimum pay and working hours.
The overall structure of both the Employment Act 2012 and the repealed Employment Act 2007 are quite similar. In the first two parts of the Acts, preliminary and general principles are stated, this is followed by Part III regarding the employment relationship itself. This is then followed by the protection of wages and the rights and duties in employment, in Chapters IV and V. The protection of children is a crucial part in the Kenyan Employment Acts and therefore, Chapter VII is dedicated to this topic.
The regulation of the labour market in Kenya is quite advanced legally and in line with Western standards. Basic principles, such as equal pay, are in line with the Kenyan Constitution, which states in Article 27(1): ‘Every person is equal before the law and has the right to equal protection and equal benefit of the law.’
Foreign investors who intend to do business in Kenya must ensure that they have comprehensive knowledge of these standards outlined in Kenyan labour law and comply with the labour law requirements. This was especially relevant in the past, when Kenya noted a high number of mergers and acquisitions.
Moreover, Kenya is a member of the International Labour Organization. It is thus also addressing affirmative action and the two-thirds gender rule has been put on a constitutional basis. In addition, every person whose human rights have been violated or are potentially at risk of being violated has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
With regards to labour relations, the Employment and Labour Relations Court was established pursuant to Article 162(2) of the Constitution for purposes of settling employment and labour disputes and the furtherance, securing and maintenance of labour relations in Kenya.
vii Rights and duties of sponsored employees
An employee with a sponsored status is one who holds a Class D work permit, which is applied for by the hiring Kenyan entity (the employer). It is the Kenyan government’s policy that the economy of Kenya should be manned by trained and competent citizens. Permits are issued to foreign nationals with skills not available at present in the Kenya labour market. Therefore, it is the employer’s obligation to prove that the foreign national holds special skills that cannot be found in the country. Essentially, the permit holder is required to possess skills or qualifications that are not available in Kenya and their engagement in that employment must be of benefit to Kenya.
The employee’s obligation is to show that he or she will be instrumental in training Kenyan citizens once in the country. Generally, this will be done by appointing a Kenya understudy who will be trained to take up the employee’s position in the organisation once he or she leaves. In essence, foreign national employees are obliged to impart their knowledge and special skills to competent and qualified Kenyan citizens since the Act provides that work permits will only be renewed for an aggregate term of five years.
Where the employee:
- fails, without the written approval of the Director of Immigration to engage in the employment within 90 days of the date the permit is issued or the date the person enters Kenya (whichever is earlier);
- where the employee ceases to engage in the said employment; or
- engages in any employment other than the employment authorised under the permit, then the permit shall cease to be valid and the presence of that person in Kenya shall be unlawful.
In addition, where the employee ceases to engage in the employment in respect of which the permit was issued, the employer must report (in writing) the termination of the employment to the Director of Immigration within 15 days of the termination.
An employee is prohibited from engaging in any kind of employment whether paid or unpaid without a valid permit, if a work permit expires, the employee is required to leave the country immediately or he will be required to obtain a visa to permit him to remain in the country. Work permits are issued to any non-citizen wishing to engage in employment in Kenya whether in gainful employment or voluntary service.
Unfortunately, an employee cannot stay indefinitely in the country and apply for a permanent status. The right to permanent residency only applies to an employee who has held a work permit for a period of seven years and has been continuously resident in Kenya for three years immediately preceding the permanent residence application. The application for permanent residence will only be accepted provided that the applicant has, at the time of lodging the application, at least three months’ validity remaining on the work permit. Application for permanent residence status is prescribed under Section 38 Kenya Citizenship and Immigration Act 2011 and Regulation 19 of the KCI Regulations.
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
i Investors and entrepreneurs
Foreigners who want own or run a business in Kenya must have a work permit from the Ministry of Immigration or risk deportation. The relevant permits for interested investors are the Class A, B, F and G permits. The type of permit applied for depends on whether the foreigner will be an owner of the business or simply an employee.
For the Class A permit, the applicant has to provide proof of a licence to prospect for minerals to mine plus proof of funds for investment of at least US$100,000.
For the Class B permit, there is no minimum amount of capital required; the applicant only has to prove that there is at least some capital available, prove her or his land ownership or leasehold and be in possession of clearances or licences from all relevant bodies and a personal identification number (PIN) certificate, required for purposes of transacting business with the Kenyan Revenue Authority.
For the Class F permit, the investor has to submit a copy of his or her currently held licence, registration of the company in Kenya, a memorandum of understanding, articles of association, a shareholder certificate (if applicable), a copy of his or her PIN certificate, a certificate of incorporation of the company and proof of funds for investment of at least US$100,000. The latter must be invested specifically in manufacturing.
To apply for the Class G permit, the applicant has to provide proof of the certificate of incorporation of the company, a memorandum of understanding, articles of association, shareholding certificate, clearance letters from relevant institutions, a copy of his or her PIN certificate and documentary proof of capital to be invested of at least US$100,000.
ii Skilled migrants
Like most other African countries, Kenya also has several possibilities for skilled migrants wishing to immigrate. Kenya introduced this option through the Class C and D permits. The Class C permit relates to the ‘prescribed professions’, whereas the Class D permit is explicitly designed for applicants ‘who [are] in possession of skills or qualifications that are not available in Kenya and whose engagement in that employment will be of benefit to Kenya’.
Prescribed professions within the Class C permit are stipulated in the Eighth Schedule of the KCI Regulations. These are: doctors, dentists, lawyers, surveyors (distinguishing between land, other surveyors and estate agents, valuers and land agents), architects or quantity surveyors, pharmacists, veterinary surgeons, engineers, nurses, physiotherapists, accountants and chartered secretaries.
In addition, those who are part of these professions must possess specific qualifications, for which registration with the applicable professional institution is generally considered sufficient. For example, being a fellow or professional associate of the Royal Institute of Chartered Surveyors or being entitled to registration as a medical practitioner.
As mentioned above, in an application for a Class D permit the applicant’s name, details and certified copies of academic certificates or professional certificates must be provided. Applicants for a Class D permit are also required to appoint a Kenyan understudy, who will be trained to take up the applicant’s position when the applicant leaves the organisation. In addition to implementing stronger enforcement of the transfer of skills from expatriate NGO staff members, this clearly provides another way for local employees to gain knowledge and experience.
VI OUTLOOK AND CONCLUSIONS
The immigration system in Kenya is based on properly drafted and published legislation. In general, the authorities are accessible and open to reason and sound legal argument. The processing times in general are fair and above average compared with those in other African countries. Kenya is a driving force both for regional integration within the EAC and for the open-border policy within the AU. It is one of a few countries in Africa that grant visitors from other African countries visas on arrival (also offered by Ghana).
Kenya has signed the most recent (March 2018) effort of the AU to establish the African Continental Free Trade Area, which is in line with the country’s political will for regional and continental integration.
1 Andreas Krensel is managing director of IBN Immigration Solutions.
2 Visa-exempt countries: Bahamas, Barbados, Belize, Botswana, Burundi, Brunei Darussalam, Cyprus, Dominica, Fiji, Gambia, Grenada, Ghana, Jamaica, Kiribati, Lesotho, Malawi, Malaysia (up to 30 days), Mauritius, Maldives, Namibia, Nauru, Papua New Guinea, Rwanda, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Samoa, Seychelles, Singapore, Sierra Leone, Solomon Islands, South Africa (up to 30 days), Swaziland, Tanzania, Tonga, Trinidad and Tobago, Tuvalu, Uganda, Vanuatu, Zambia and Zimbabwe.
3 Visa-restricted countries: Afghanistan, Armenia, Azerbaijan, Cameroon, Eritrea, Iraq, Kosovo, Lebanon, Libya, Mali, Nigeria, North Korea, Palestine, Senegal, Somalia, Syria and Tajikistan.
4 Source: https://immigrationkenyanews.com/2018/02/05/ammendements-to-the-kenya-citizenship-and-immigration-act-2011/ and http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2017/StatuteLaw_MiscellaneousAmendments_Act_No11of2017.pdf, pp. 213–215 (last accessed 11 March 2018).
6 Seventh Schedule of the KCI Regulations.