I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Ghana is located on the west coast of Africa. It is bounded by Burkina Faso to the north, Ivory Coast to the west, Togo to the east and the Gulf of Guinea to the south. It has a social, political and economic environment that is most conducive to business and is certainly one of Africa's leading economies.
All foreigners who intend to enter or transit through Ghana's territory must first obtain a Ghana entry visa from a Ghanaian consulate abroad and must also be in possession of a valid passport or travel documents establishing the identity of the holder before they travel to Ghana. However, citizens of the Economic Community of West African States (ECOWAS)2 and, as of recently, citizens from the remaining African Union (AU) countries are exempted from applying for visas but are required to obtain an entry visa stamp on arrival at the international airport in Accra.
The Ghana Immigration Service (GIS) is the key agency responsible for immigration in Ghana. However, Ghana's immigration landscape accommodates various other actors (i.e., agencies and regulators) who play various roles in the overall immigration processes pertaining to work authorisation for foreign assignees in their respective sectors.3 These include the Petroleum Commission in respect of oil and gas companies, and companies offering services to the petroleum sector, the Minerals Commission for mining companies and mining support companies, the Ghana Investment Promotion Centre (GIPC) for companies with foreign shareholding, and the Ghana Free Zones Board for companies registered as free zones companies.
The involvement of these regulators may take the form of issuing automatic immigrant quotas, or control over all work authorisation processes for companies intending to employ foreign nationals.
i Legislation and policy
Ghana introduced the National Migration Policy in 2016, aimed at bringing migration issues into the spotlight, improving various aspects of Ghana's immigration management and control activities and finally facilitating the achievement of an improved immigration compliance practice in Ghana. The primary legislation governing immigration in Ghana is the Immigration Act 2000 (Act 573) and Immigration Regulations passed pursuant to the Act. This legislation serves as the primary source for all immigration services provided in Ghana. The GIS is the frontline agency responsible for the entry, residence and employment of foreign nationals in Ghana in accordance with the provision of the Immigration Act 2000 (Act 573). Other pieces of legislation with a bearing on migration issues include:
- the Ghana Investment Promotion Centre Act 2013 (Act 865) (the GIPC Act); and
- the Free Zone Act 1995 (Act 504).4
There are two main types of work permit issued by the GIS: temporary and long-term work permits. The former is valid for six months and the latter is usually valid for a year. Temporary permits are non-renewable while the long-term work permits may be renewed upon an application to the Director of Immigration.
The GIPC Act guarantees issuance of automatic immigrant quotas to companies with foreign participation operating in Ghana. These quotas are issued based on the company's level of investment or foreign paid-up capital. Irrespective of the above-mentioned immigrant quotas, the GIS may refuse to grant a visa to an expatriate to whom a quota relates; where the GIS has sufficient reason to believe that the expatriate is not a desirable person and should not be permitted to enter the country.5
ii The immigration authorities
The main agency responsible for immigration is the GIS, which falls within the remit of the Ministry of Interior.
The GIS is tasked with performing the core immigration function of monitoring movement into and out of the country, regulating the activities of foreigners, issuance of permit and visas, and monitoring and investigating breaches of the immigration laws and regulations. It is further tasked with ensuring compliance with the provisions of the GIPC, social security and income tax laws, issuance of permanent residence status and indefinite stay status to deserving applicants, detention, removals, passport processing, collaboration with other agencies, refugees and asylum assistance and border patrol.
The Ministry of the Interior, on the other hand, is mandated to ensure internal security, prevent and manage internal conflicts and disputes, manage crime prevention and prosecution of offenders, rehabilitation and reform of prisoners, protection of the country's frontiers, immigration control and monitoring of the activities of illegal immigrants, the repatriation and deportation of illegal aliens and the extradition of fugitive criminals.
iii Exemptions and favoured industries
Citizens of ECOWAS are offered preferential treatment, such as the right to enter Ghana, reside and establish a business during a stay of not more than 90 days. However, citizens must be in possession of a valid travel document and an international health certificate.
The GIPC encourages foreign investments in a number of sectors. These include agriculture and agro-processing, information and communications technology, infrastructure, energy, healthcare and food processing.
Incentives and benefits are provided to these sectors, including customs duty exemptions on equipment imported for investment purposes; general free transferability of capital,6 profits and dividends; insurance against non-commercial risks;7 double taxation agreements to rationalise the tax obligations of investors to prevent double taxation; as well as automatic immigrant quotas.8
II INTERNATIONAL TREATY OBLIGATIONS
On 28 May 1975, Ghana signed the treaty establishing ECOWAS in Lagos, Nigeria with 14 other Member States. This treaty was created to promote economic trade, national cooperation and monetary union for growth and development throughout West Africa.9
Citizens of Member States may freely enter Ghana, have a right to work and undertake commercial activity provided they possess a valid travel document, residence card or permit and have registered the company. They also have the right to reside in Ghana as long as they have an approved passport and have gained admission through the approved port of entry.10
However, it is not permissible for community citizens to reside illegally or enter into Ghana illegally. Thus Ghana can refuse entry to any community citizen that falls within the category of inadmissible immigrant under its laws.
On March 2018, Ghana signed the AU Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Right of Establishment. Among other things, the provisions in this Treaty, which are akin to that of the ECOWAS Protocols on Free Movement, seek to permit free entry for citizens of the African Economic Community by adopting the Africa Union passport by 2018.11 Ghana has so far not implemented the protocol apart from its less than three years old policy12 of permitting African nationals, apart from ECOWAS citizens, to travel to Ghana without a preapproved visa and be issued with a visa on arrival for a stay up to 60 days. On the backdrop that trade and movement of persons are inseparable, achieving the provisions of the protocol by the AU has been ambitiously tied to the African Continental Free Trade Agreement, which was adopted by a sizeable number of Member States around the same period that the Treaty on Free Movement was adopted.
III THE YEAR IN REVIEW
As well as the recent passing of the new Immigration Service Act 2016 (Act 908), the period under review has witnessed some major developments in immigration.
i Increased local content in the oil and gas sector
The past year saw further enforcement of Ghana's local content policies by the Petroleum Commission, especially in ensuring that Ghanaians who have expertise in the petroleum sector are employed and that those with basic training and qualifications relevant to the sector were trained or employed. Further to activities under the Accelerated Oil and Gas Capacity Programme (AOGC),13 the Petroleum Commission held its first localisation workshop, where it re-emphasised the need for players in the industry to comply with localisation guidelines and targets as enshrined in the local content laws; and introduced new guidelines for the employment of foreign nationals in the sector. The new guidelines involved in the work authorisation process require planning and initiating 'workforce mobilisation activities'. The Petroleum Commission now requires the submission of a series of related plans and templates as part of the work permit process, and there is also a new requirement that knowledge and skills are transferred to Ghanaians for transient roles regardless of the assignment's duration.
The GIS also appears to have tightened it compliance regime; pursuant to this, the GIS requested firms operating in the Western Region to submit details of foreign nationals who travel on Business Visa (B-1) to undertake various assignments in the Region.14
ii ECOWAS free movement and execution of critical integration projects
During the past year, ECOWAS Member States made strides towards further integration, evidenced by efforts towards implementing the Single Currency Programme, which expires in 2020, by actively engaging the ECOWAS Parliament to mount pressure on their respective governments to harmonise their economic and financial policies, and establishing a special fund to aid the aforementioned programme. Further, Member States have obtained the requisite grant for the construction of a six-lane highway connecting the West African coastal corridor (Praia-Dakar-Abidjan-Accra-Cotonou-Lome-Lagos).15 Although these actions will not lead to direct implementation of the provisions enshrined in the ECOWAS Protocols on Free Movement, their successful implementation could positively impact efforts towards achieving these objectives and the subsequent integration of ECOWAS Member States.
IV EMPLOYER SPONSORSHIP
All foreigners who intend to work in Ghana must be sponsored by a host entity in Ghana. An offer letter or a valid contract must exist between the host entity and the assignee to trigger the work authorisation process.
Foreign nationals may only work in Ghana after obtaining a work permit issued to the company by Ghana Immigration Service or an automatic immigrant quota issued by the GIPC. A holder of a work permit or GIPC quota must subsequently apply to the Ghana Immigration Service for a residence permit to be fully authorised to work.
i Work permits
It is mandatory for all foreign nationals seeking work in Ghana to have the relevant work permit. Corporate bodies and other institutions that wish to employ foreign nationals may obtain work permits for these employees upon application to the Ministry of the Interior through the Director of the Ghana Immigration Service. As mentioned above there are two main types of work permits issued by the Ghana Immigration Service. These are temporary and long-term work permits. Generally, the requirements for obtaining a work permit are as follows:
- from the employer:
- business registration documentation;
- corporate tax clearance certificate;
- application letter;
- audited accounts (if available);
- letter of support from government agencies (where applicable);
- GIPC registration certificate (if applicable);
- completion and signing of work permit application form; and
- offer or appointment letter, or contract of employment; and
- from the employee:
- copy of bio data page of passport;
- curriculum vitae;
- professional and educational certificates;
- medical certificate indicating fitness to work;
- police clearance certificate from country of origin or current residence; and
- evidence of efforts to recruit a Ghanaian for the position (i.e., advertisement of the job vacancy).
The residence permit allows for multiple entries into Ghana by the holder during the period of validity of the permit. An application for a residence permit may require an assignee to surrender their passport during the consideration of the application. Other conditions must also be met before a residence permit is issued. These include providing a copy of the applicant's non-citizen identification card and passport-size photographs.
Dependants of a holder of a residence permit must demonstrate their connection to be issued with a residence permit. A spouse may be required to submit evidence of marriage, while copies of the relevant birth certificate may be required for a child. No work for remuneration is permitted on dependent permits. Benefits include:
- multiple entries into Ghana during the period of validity of the residence permit;
- dependent children may enrol in schools and are entitled to all benefits accorded to Ghanaians; and
- access to all services, including banking and insurance.
Additional requirements of regulators and government agencies
Additional requirements may be imposed by government and regulatory agencies that play a part in the work authorisation process. These include the GIPC, the Free Zones Board, the Petroleum Commission and the Minerals Commission. Their level of involvement varies from simply issuing automatic immigrant quotas to complete control of the process. Companies that fall within the above sectors must register with the relevant regulatory agency.
A person, other than a prohibited immigrant,16 aggrieved by a refusal to grant or renew their permit, revocation of permit or repatriation may petition the Minister of Interior for redress within seven days of the action and the Minister may take appropriate action to redress the matter.17 Recourse to the law courts is also available to an aggrieved party in a decision of the immigration authorities.
ii Labour market regulation
The Constitution of Ghana offers protection to all persons in Ghana.18 Foreign workers therefore have the same rights as Ghanaian workers and cannot be subject to discrimination at work on the basis of their nationality.
Labour Act of Ghana
Ghana's labour law19 is applicable to all workers and employers in Ghana. The law defines a worker in broad terms irrespective of nationality.20 The law prescribes the rights and obligations of employers and employees.21 The law provides protection against unlawful termination of employment22 and provides remedies for unlawful termination.23 The law further guarantees employees the freedom to form and join trade unions of their choice24 and generally prohibits unfair labour practices.25 To further protect the rights of both employers and employees the law establishes the National Labour Commission to receive complaints from workers, trade unions, employers and employers' associations in the settlement of industrial disputes.26 The Commission in settling disputes has the powers of the High Court of Ghana.27 There is a right of appeal to the Court of Appeal against a decision of the Labour Commission.28
The National Labour Commission is the main administrative adjudicating body in charge of ensuring a congenial atmosphere for all labour market individuals. The Commission has resolved countless industrial disputes using effective industrial relations mechanisms outlined in the Labour Act 2003 (Act 651), the NLC Regulations 2006 (LI 1822) and the Labour Regulations 2007 (LI 1833).
Its duties include receiving labour-related complaints, facilitating the settlement of industrial disputes, settling industrial disputes and promoting effective cooperation between labour and management.
The establishment of the Commission has enhanced cooperation among social partners, which has translated into a harmonious industrial relations environment in the country.
With effect from July 2013 the National Pensions Regulatory Authority has been demanding social security contributions from foreigners working in Ghana. The definition of a worker under the National Pensions Act 2008 (Act 766)29 covers everyone, including foreign workers, who are therefore required to make the statutory pension contribution. Employees are expected to make a mandatory contribution of 5.5 per cent of their basic salary to the scheme on a monthly basis while the employer makes a compulsory contribution of 13 per cent on a monthly basis. Employees may elect to make additional voluntary contributions. There is also voluntary coverage for self-employed persons and previously insured persons who are unemployed. The Act provides for a sanction regime for non-compliance.30
An employer engaging the service of a foreign national in Ghana must present evidence to satisfy the Ghana Immigration Service that attempts have first been made to recruit a Ghanaian to the position.31 This evidence may be in the form of a newspaper advertisement or any other mode of advertisement. Oil and gas service companies are also mandated to incorporate the dictates of the 'local content' regulations applicable to their sector in recruiting foreign labour to undertake work activities in the sector.32 Companies in the oil and gas sector are required to submit local content plans for approval from the Petroleum Commission prior to registration to undertake petroleum activities.33 It is further required that the local content plan should contain a sub-plan on employment and training of the Ghanaian workforce.34 Preference must also be given to Ghanaian companies in the acquisition of goods and services.35
Resident and non-resident taxpayers
An individual who is not a citizen of Ghana is resident for tax purposes in any particular year if he or she resides in Ghana for a period exceeding 183 days in a 12-month period that commences or ends during the year of assessment.36
Non-residents are liable for tax on income earned or derived in Ghana. They are not liable for tax on income brought into Ghana or received from a source outside Ghana. Tax relief would be available where Ghana has a tax treaty with the other country.37
iii Rights and duties of sponsored employees
The sponsored employee has a right to work and reside in Ghana, freely going about lawful activity. They are also guaranteed the fundamental freedoms in the Ghanaian Constitution.38 As with many countries, foreign nationals working in Ghana are also accorded certain rights and privileges enjoyed by Ghanaian39 workers, including all rights to redress available to Ghanaians. Specifically, the rights and duties of an employee provided in our Labour Act are applicable to sponsored employees working in Ghana.40 These include the right to work under satisfactory, safe and healthy conditions, receive equal pay for equal work without discrimination of any kind and to receive information relevant to his or her work.41
- notifying the Director of Immigration within seven days of commencement of employment or cessation of employment;44 and
- an obligation to submit an annual return, not later than 14 January in each year, to the issuing authority with a copy to the Director of Immigration, giving names and addresses of all foreign employees in their employment as at 1 January.
Other particulars that may be prescribed will also have to be provided.45
The Labour Act of Ghana further imposes general duties on workers that include the following:
- to work conscientiously in the lawfully chosen employment;
- enhance productivity;
- obey lawful instructions regarding the organisation and execution of his or her work; and
- take proper care of the property of the employer entrusted to the worker or under the immediate control of the worker.46
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
As foreign direct investment is an integral part of Ghana's economic policy, the government has created an enabling legal environment, by passing laws that encourage foreign investment.47
Foreign investors intending to invest in Ghana can opt to register a wholly owned limited liability company, a joint venture with a Ghanaian partner or a branch office in Ghana at the Registrar General's Department under the relevant laws. If approved, the enterprise is issued a certificate of incorporation and a certificate to commence business.
The GIPC Act established the GIPC under the Office of the President and it is responsible for promoting investment in all sectors of the economy. Thus entities with foreign participation must register with the GIPC and satisfy the provisions of the GIPC Act. Sector-specific laws further regulate banking, non-banking financial institutions, insurance, fishing, securities, telecommunications, energy and real estate.
The GIPC Act provides the following in respect of the minimum capital requirement for non-Ghanaians in any enterprise:
- in a joint enterprise with a Ghanaian partner, the minimum capital requirement is US$200,000 or its equivalent in capital goods;
- in a wholly foreign-owned enterprise, the minimum capital requirement is US$500,000 or its equivalent in capital goods; and
- in the case of a trading enterprise irrespective of whether it is wholly or partly owned by a non-Ghanaian, the minimum capital requirement is US$1 million and the enterprise shall be required to employ at least 20 skilled Ghanaians.
Some benefits result for business entities that register with the GIPC. These include immigrant quotas and other investment guarantees.48
Also, Ghana's investment laws protect investors against expropriation and nationalisation. Thus, a person who owns the capital of an enterprise may not be compelled by law to surrender that interest in the capital to any other person.49 Moreover, regarding disputes, where the investor and the government fail through discussion to reach an amicable settlement, the aggrieved party has the option to submit the dispute to arbitration.50
ii Skilled migrants
Ghana does not have a skilled migrant policy; however, companies are allowed to recruit skilled migrants with specialised skills not readily available on the Ghanaian market. Skilled migrants are issued work permits, usually valid for three to four years, and these specialised skills are expected to be imparted to the Ghanaian workforce during this period.
VI OUTLOOK AND CONCLUSIONS
Ghana continues to attract investments in the energy, railway and oil and gas sectors, as well as general infrastructure.
Projections made about the oil and gas sector have progressed steadily. The sector remains one of those most preferred by investors and thus has high prospects for corporate immigration in Ghana.
The aviation industry provides a great avenue for expansion, given the expansion project that was started a few years ago and is likely to be pursued and further promoted by the current government.
The energy needs of the country for both industry and domestic usage, makes a good business case for further investment in the sector so it is anticipated that the prospects in the sector would continue to exist for the private sector in investing in alternative (non-hydro-based) and cheaper energy generation solutions to meet ever-increasing domestic and industrial demands.
To further boost Ghana's economic fortunes, there is a vigorous attempt under way to attract the investment needed in the railway sector. This is likely to lead to increased efficiency and productivity.
The AOGC (see Section III.i), has seen gains with a steady increase in participation of Ghanaians in the oil and gas sector. Some players in the industry are starting to implement concrete policies in training Ghanaians both locally and abroad to equip them with the necessary skills. The Petroleum Commission is most likely to get tougher on compliance with AOGC local content objectives by companies operating in the oil and gas space. The Petroleum Commission has also set a target to focus on capacity building to get Ghanaian workers in the sector ready for export to other countries as experts. This has ultimately led to increased scrutiny of work permit applications in the oil and gas sector over the past year and we anticipate more scrutiny in the coming year.
The establishment of the IRU by the GIS (see Section III.ii) and its mandate to research into international best practices is poised to bring Ghana's immigration system into line with the best global models. The process for amending the Immigration Act of Ghana is under way, with a committee having been set up to review the Immigration Act 2000 (Act 573) to bring it up to the standard of best international immigration practice.
In conclusion, the economic outlook of the country is expected to continue to be positive and attractive to foreign investments.
1Paa Kwesi Hagan is managing partner at Globetrotters Legal.
2ECOWAS is a regional group of 15 West African countries founded on 28 May 1975 with the signing of the Treaty of Lagos. Its mission is to promote economic integration and share development of the West Africa sub-region.
3Section 29 of Act 573 recognises the role of other agencies or enactments in the granting of quotas.
4Sections 28, 29, 30, 31, 34 and 35 of Act 504.
5See Section 23(1)(4) of the Ghana Investment Promotion Centre Act 2013 (Act 865).
6Section 32 of Act 865.
7Ghana is a signatory to the World Bank Multilateral Investment Guarantee Agency convention.
8Section 35 of Act 865.
9Members are Benin, Burkina Faso, Cape Verde, Gambia, Ghana, Guinea, Guinea Bissau, Ivory Coast, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo.
10Article 27(2) of the ECOWAS Treaty.
11Articles 6 and 7 of the AU Protocol to the Treaty Relating to the Establishment of Free Movement.
12Following an announcement made by the President of Ghana in July 2015, this policy is currently being implemented.
13The AOGC was launched on 7 November 2018 by the President of Ghana.
14The directive, although not exclusive to the oil and gas sector, appears to have been prompted by allegations of malpractice by firms operating in the Western Region. The information has to be submitted in a prescribed format covering passport details to actual purpose for the trip.
15This corridor spans a distance of approximately 1,080 kilometres long, through cities and communities that hold a large percentage of West Africa's population and vibrant seaports that are critical for the subregion.
16Prohibited immigrants include those with a deportation order in force against them, those whose activities are contrary to the laws of Ghana and those who have been declared by a medical officer to be medically unfit to enter Ghana.
17Section 46 of Act 573; however, the petition is not a stay of the action that is the subject of the petition.
18Article 12(2) states that 'Every person in Ghana, whatever their race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.'
19The Labour Act 2003 (Act 651) is a comprehensive law consolidating all the laws relating to labour, employers, trade unions and industrial relations.
20Section 175 of Act 651.
21Sections 8, 9, 10 and 11 of Act 651.
22Sections 15, 17 and 18 of Act 651.
23Sections 63 and 64 of Act 651.
24Sections 79 and 80 of Act 651.
25Sections 127, 128, 129, 130 and 131 of Act 651.
26Sections 135 and 139 of Act 651.
27Section 139(2) of Act 651.
28Section 134 of Act 651.
29In Section 211 of Act 766 the definition of a worker 'includes a person who is employed for salary in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets his salary, directly or indirectly from the employer, and any person employed by or through a contractor in or in connection with the normal work of the establishment, who is:
- employed in this country but not as a member of the crew of any ship; or
- employed as a permanent resident of Ghana:
- as a member of the crew of a ship, the owners of which have an office or agents in Ghana; or
- outside Ghana but employed by an employer in Ghana'.
30See Sections 200 and 201 of Act 776.
31Priority is to be given to Ghanaians in Regulation 9(1)(a) of the Petroleum (Local Content and Local Participation) Regulations 2013 (LI 2204).
32See also the Petroleum (Local Content and Local Participation) Regulations 2013 (LI 2204).
33Regulation 7 of LI 2204.
34Regulation 9(3) and 17 of LI 2204.
35Regulation 11 of LI 2204.
36Section 160 of Internal Revenue Act 2000 (Act 592).
37Section 111 of Act 592.
38Section 12(2) of the 1992 Constitution of Ghana states that 'Every person in Ghana, whatever their race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.'
39See Labour Act 2003 (Act 651), National Labour Commission Regulations 2006 (LI 1822) and Labour Regulations 2007 (LI 1833).
40See the definition of a worker in Section 175 of Act 651.
41Section 10 of Act 651.
42Section 8(1)(h)of Act 573.
43The foreign employee is prohibited from changing their employment.
44Section 30 of Act 573.
45Section 31 of Act 573.
46Section 11 of Act 651.
47Act 865 is the primary law promoting foreign direct investment into Ghana.
48These include full repatriation of dividends and net profit attributable to the investment made in enterprise, payments in respect of loan servicing where a foreign loan has been obtained, fees and charges in respect of technology transfer agreements registered with the centre as well as guaranteed protection from expropriation.
49Section 31 of Act 865.
50Section 33 of Act 865.