I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
i Legislation and policy
The central piece of legislation governing immigration law and practice in Nigeria is the Immigration Act of 2015 (the Act or the 2015 Act), which repealed the long-standing Immigration Act of 1963 (the 1963 Act).2 It is supported by the Immigration Regulations of 2017 (the Regulations), which were issued as subsidiary legislation by the Minister of Interior (the Minister), pursuant to Section 112(1) of the Act.3
The Act ensures that Nigerian immigration laws and policies adequately reflect modern migration management and conform with international best practices, while the Regulations provide the legal framework for the effective implementation of the Act.4
Administration of the Act
A key element of the Act is the formal designation of the Nigeria Immigration Service (NIS) as the principal body charged with the responsibility for administering the Act, with the power to both sue and be sued,5 under the headship of the Comptroller General of Immigration (CGI). The responsibilities of the NIS, as stipulated under Section 2 of the Act, encompass:
- the control of persons entering or leaving Nigeria;
- the issuance of travel documents, including Nigerian passports, to bona fide Nigerians;
- the issuance of residence permits to foreigners in Nigeria;
- border surveillance and patrol;
- the enforcement of laws and regulations with which they are directly charged; and
- the performance of such paramilitary duties within or outside Nigeria as may be required of them.
Categories of visas and permits available
Both the Act and the Regulations provide for the issuance by immigration authorities of various types of visas and permits for entry and residence in Nigeria by non-Nigerian citizens. Applications for visas and most permits are to be made to the CGI6 or to the appropriate Nigerian diplomatic mission established abroad.7 The categories of visas and permits that are available under Nigerian immigration law are as follows:
- transit visas and direct transit visas (airside);
- tourist visas;
- official or diplomatic visas;
- short-visit visas:
- business visa; and
- visa on arrival (VoA);
- temporary work permits;
- subject to regularisation (STR) visas; and
- residence permits.
Further details of some of the categories of visa and permits available are provided below.
|Purpose of application||Term – duration||Available visa/permit||Applicable provisions|
|Business purposes||Short term – duration of up to 90 days||Business visa, VoA||Sections 20(7) and 37(9) Regulation 9|
|Long term – establishment of a business or trade||Business permit, expatriate quota approval (EQA)||Section 36(1)(b) of the Act; Regulations 4 and 12, and Schedule 1 of the Regulations|
|Employment purposes||Short term||Temporary work permit||Section 37(8) of the Act; Regulation 8|
|Long term – duration of up to two years; renewable||STR visa, residence permit (regularisation of stay)||Sections 20, 36(1)(a) and (2) and Section 37 of the Act; Regulation 12 and Regulation 5. Depending on the industry sector, other guidelines and conditions will also apply.|
|Residence||Permanent||Residence permit||Section 37(11) of the Act and Regulation 5(7)|
|Tourism||Short term – duration not exceeding 90 days||Tourist visa||Section 20 of the Act and Regulation 6|
|Transit||Short-term – 48 hours where obtained on arrival; seven-day period where obtained at Nigerian mission||Transit visa||Section 20(4) of the Act and Regulations 2, 7, and 20|
Prerequisites for entry
Section 18 of the Act stipulates that an immigration officer shall, unless the Minister of Interior (the Minister) or the CGI otherwise directs, admit into Nigeria a person who:
- 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 needed for entry into Nigeria should, therefore, be ordinarily admitted into the country. Entry can, however, be denied to a foreign national by the immigration officer in the following circumstances: where the requisite visa or permit needed for entry or admission has not been validly obtained;8 where, on the advice of a medical inspector, it is undesirable for medical reasons to admit such a person;9 or where the national seeking entry is classified as a prohibited immigrant.10 Entry can also be validly denied to those considered to be a risk to public health, public interest or national security11 and those who should not be admitted into Nigeria on any other ground as may be prescribed from time to time by the Minister or the CGI.12
Penalties for non-compliance and jurisdiction to hear immigration matters
Various offences of non-compliance by individuals and corporations are set out under the Act and Regulations,13 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,14 a fine of 1 million naira15 or potential deportation as the penalty for non-compliance with provisions relating to entry for business purposes for individuals,16 and the assignment of criminal responsibility to airline operators and commercial carriers for facilitating an immigration offence.17 Some of the offences and penalties stipulated in Sections 56 and 57 of the Act and included in Part VII of the Regulations (Regulations 52(6), 52(7) and 53) are detailed in the table below.
|Commission of offence by expatriate||Details||Penalty|
|Non-completion of regularisation of stay by expatriate||Failure to complete within the stipulated three-month period||Liable to imprisonment for a term of three years, a fine of 500,000 naira, or both|
|Non-renewal of residence permit by expatriate||Failure to renew 30 days after expiry|
|Non-renewal of other visas and or permits by expatriate||Failure to renew 30 days after expiry|
|Submission of false return, statement, or representation to an immigration officer||Requirement that offender knows it to be false or does not believe it to be true||Liable to imprisonment for a term of five years, a fine of 1 million naira, or both|
|Failure of a corporate entity to renew its expatriate quota or render its expatriate monthly returns||Failure to renew expatriate quota within the stipulated time||Liable to a fine of 3 million naira|
|Failure to engage Nigerian employees to understudy expatriate employees||Refusal to employ Nigerians to understudy expatriate employees as required||Liable to a fine of 3 million naira for each month that a position is occupied by an expatriate without an understudy|
|Contravention of, or failure to comply with provisions of the Regulations, conditions, or directives or instructions pursuant to the Regulations||In respect of the provisions of the Regulations, conditions set out for grant of any visa or permit, or any directive or instruction given pursuant to the Regulations||Liable to administrative fine or penalty not exceeding 1 million naira, subject to the approval of the CGI|
Stringent penalties and expansive powers of enforcement are therefore included in the Act, while the provisions of the 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 Act or 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.18 Both of these powers are exercisable without a warrant and underline a determination by the authorities to consistently monitor immigrants and ensure compliance with immigration laws by foreign nationals.
With respect to immigration-related matters, the jurisdiction to hear and determine such proceedings resides with the Federal High Court (FHC),19 and the Act further provides for the establishment of a division under the FHC that is to be responsible for hearing all matters relating to immigration.20 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.21 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,22 further underscoring the importance and need for foreign nationals and their employers to remain fully compliant with the provisions of the 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 being in accordance with the provisions of Section 109(1) of the Act, which stipulates 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
Pursuant to the 2015 Act and the Regulations, the NIS is the body primarily entrusted with the administration of the Act and the provisions of both the Act and the Regulations provide clarity regarding the structure and composition of the NIS and the duties of its officers.23 Further details about the rank of NIS officers, as mentioned in both the Act and the Regulations, are provided below:
|NIS Rank||Responsibilities||Applicable provisions|
|CGI||Head of NIS; responsible for the day-to-day administration of the Act or any other enactment conferring immigration duties upon the CGI; and responsible for directing the performance of the duties of the NIS generally.||Sections 3(1) and (2), and Section 6(a) of the Act|
|Deputy Comptrollers General (Deputy CGs)||Second in command in the NIS, with authority to act for the CGI in his or her absence from NIS headquarters (HQ); assist the CGI in the performance of his or her duties; and head directorates at NIS HQ.||Section 3(3), Section 6(b) and Section 7 of the Act|
|Assistant comptrollers general||Act for the CGI in the absence of both the CGI and the Deputy CG; in charge of divisions at NIS HQ; and heads of zonal offices.||Section 3(4)(a), Section 6(c) and Section 8 of the Act|
|Comptrollers of immigration||Heads of sections at NIS HQ; heads of state commands and training schools.||Section 3(4)(b) and Section 6(d)|
|Deputy comptrollers of immigration||Duties as prescribed in the NIS schedule of duties and such other duties as directed by the CGI.||Section 3(4)(b) of the Act and Regulations 69–71 of the Regulations|
|Assistant comptrollers of immigration||Head area offices; each area office exercises supervisory functions over at least three local government areas in each state of the federation.||Section 3(4)(b) and Section 6(e) of the Act|
|Officers in charge of borders, and land, marine and air border patrol units||In charge of borders, and land, marine and air border patrol units; discharge border surveillance and patrol duties, as well as other paramilitary duties as required; designated officers authorised to carry arms, lethal weapons and such other devices as may reasonably be required or necessary.||Section 3(4)(b) and Section 6(f) of the Act, Regulation 73 of the Regulations, and Sections 2(d) and 2(f) of the Act|
|Immigration local government area officers||Heads of local government immigration offices.||Sections 3(4)(b) and 6(g) of the Act|
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,24 and assigned specific functions under the Act. At present, the Ministry is responsible for matters related to the granting of Nigerian citizenship and the granting of expatriate quotas, among other functions.
Other 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;25
- the Corporate Affairs Commission (CAC), which administers the provisions of the Companies and Allied Matters Act (CAMA)26 – the principal legislation that governs the incorporation and regulation of the companies in Nigeria. By virtue of the CAMA's provisions and their applicability on matters relating to foreign participation in enterprises in Nigeria, the CAC, therefore, by default, has an impact on the administration of the 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 2018;
- 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;
- 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).27
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 States28 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 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.29 With respect to the right of residence and establishment of business, ECOWAS nationals are advised to procure a residence card from the NIS, which is valid for five years, and are also at liberty to procure an ECOWAS travel certificate, as an alternative or in addition to their country's passport, for the purpose of travel within the community. These provisions are also, to a certain extent, reflected in the Regulations, which stipulate the need for ECOWAS nationals to register with the NIS to be issued with valid residence cards.30
Additionally, 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.
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.31
Export promotion activities
Companies engaged solely in export promotion activities, and operating in export processing zones (also known as free zones),32 benefit from a more liberalised regime for employment of expatriates. The applicable laws in respect of these zones are the Nigeria Export Processing Zone Act, Cap N107, LFN 2004 (the NEPZ Act); 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.33
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,34 which today is a 15-member regional group and single trade area with a mandate to support integration throughout its Member States.35 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.36
Nigeria has also ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which came into force in 2003; the United Nations Convention against Transnational Organized Crime and the Protocol against the Smuggling of Migrants by Land, Air and Sea Supplementary to the UN Convention, both in 2001; Convention No. 87 on the Right to Freedom of Association and the Right to Organize in 1960; Convention No. 97 on Migration for Employment and its Recommendation No. 86 in 1960; and takes cognisance of the 1969 OAU Convention on the status of refugees in Africa and the African Charter on Human and People's Rights of June 1982, among others.
III THE YEAR IN REVIEW
i Important changes in legislation and policy
During the course of the previous year, the federal government (FGN) implemented measures aimed at improving the business environment in Nigeria. Historically, one of the biggest challenges facing foreign investors seeking to come to Nigeria has been the ease of doing business in the country (or rather the lack of ease), and the FGN sought to address this challenge through the constitution of the Presidential Enabling Environment Council (PEBEC),37 the objective of the PEBEC being to remove constraints on doing business in Nigeria.38 The Ease of Doing Business (initiative) has resulted in an effective collaboration between the presidency and the National Assembly through legislative bills and action plans, as well as extensive engagement of public and private sector stakeholders on various reform steps required to provide a favourable business climate in the country.
In line with this ongoing commitment to deliver reforms through systematic interventions, a series of National Action Plans (NAPs)39 have been initiated since the PEBEC's first 60-day NAP (NAP 1.0). Having reformed the Corporate Affairs Commission processes by reducing the number of days required to incorporate a business, simplified the visa-on-arrival process and overseen the issuance of the Immigration Regulations 2017, among other things.40 Most notably, NAP 1.0 was followed by the issuance of Executive Order41 001 of 2017 on the Promotion of Transparency and Efficiency in the Business Environment (EO1), which encourages ministries, departments and agencies (MDAs) to adopt openness and transparency in respect of their service delivery, by specifically requiring, among other things, that:42
- every MDA of the FGN (including the NIS) publish a complete list of all requirements or conditions for obtaining products and services within its scope of responsibility, including all fees and timelines required for the processing of applications for those products and services;
- the CGI, as well as the head of all other MDAs, ensure that the list is verified and kept up to date at all times. If there is any conflict between a published and an unpublished list of requirements, the published list shall prevail;
- a comprehensive and up-to-date list of requirements, conditions and procedures for obtaining VoAs, including estimated time frames, be published on all immigration-related websites in Nigeria and abroad, including embassies and high commissions, and all ports of entry into Nigeria;
- all applications for business registrations, certification, waivers, licences or permits not concluded within the stipulated time frame shall be deemed approved and granted; and that reasons be given for all rejections of applications;
- the NIS and all other relevant MDAs at airports merge their respective departure and arrival interfaces into a single customer interface; and
- all registration processes at the CAC be fully automated through the CAC website, from the start of an application process to completion.43
Additionally, during the course of the preceding year, in 2018, the president signed an executive order to promote science and technology acquisition and the participation of local companies in government procurement activities. The Presidential Executive Order 005 of 2018 for Planning and Execution of Projects, Promotion of Nigerian Content in Contracts and Science, Engineering and Technology (EO5) directs, among other things, that:
- preference be given to Nigerian companies and firms, by procuring entities, in the award of contracts, in line with the Public Procurement Act 2007, and with preference to be given to foreign companies or firms only where Nigerian expertise is lacking;
- consideration only be given to a foreign professional over indigenous professionals in the planning, design and execution of national security projects, where it is certified by the appropriate authority that such expertise is not available in Nigeria;
- expatriate quotas for projects, contracts and programmes are granted in line with the provisions of the Immigration Act and other relevant laws by the Ministry, where qualification and competency of Nigerian nationals are not available or cannot be ascertained; and
- the Ministry, where necessary, create a special immigration classification to encourage foreign expatriates to reside and work in Nigeria for the purpose of sharing knowledge with Nigerians.
Significantly, last year also witnessed the passing through the National Assembly of the planned amendment of CAMA in the form of the Companies and Allied Matters Act (Repeal and Re-enactment) Bill 2018 (the CAM Bill), which further reflects the efforts and objectives of the PEBEC to promote a more accessible business environment by putting in place a legal framework that enhances and complements this objective. It is anticipated that the bill, once it receives presidential assent, will become the principal law governing corporate law in Nigeria, and as such, will have an indirect impact on corporate immigration practice and procedure in the country.
ii The impact of changes on immigration practice and procedure
The most visible impact of the NAP 1.0 and subsequent EO144 on immigration procedure and practice has been the simplification of procedures and processes by the MDAs, particularly the NIS, having specifically adopted the following measures, which simplified procedures and facilitated processes in respect of immigration-related applications, namely:
- conducting a review of the requirements for visas to make them more customer-friendly and a review of processes, with a focus on the visa on the VoA, business visa, tourist visa and transit visa;
- limiting the VoA processing procedure to 48 hours and defining time frames for several other applications;
- implementing harmonisation of airport arrival and departure cards into a single form; and
- publishing its Handbook of Immigration Facilities and Services (the NIS Handbook), which provides detailed information to the general public about its immigration services and facilities.45
IV EMPLOYER SPONSORSHIP
i Work permits
Under the provisions of the Act and the Regulations, a foreign national is precluded from accepting employment (in the private sector) without the written consent of the CGI,46 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.47
It is, therefore, incumbent upon the proposed employer seeking to employ a foreign national to initiate the process with the relevant authorities; the process to be initiated, which is a multiphased one, governed by both provisions of the Act and the Regulations (as well as by applicable guidelines) is outlined below.
Application for an expatriate quota approval
The first phase of the process is to submit an application to the Ministry, to secure an expatriate quota approval (EQA).48 This is the official permit granted to the proposed employer company to enable it employ individual expatriates into specifically approved job designations, while also specifying the term of the quota grant. (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 Nigerian Content Development and Monitoring Board (NCDMB) before applying for the grant or renewal of an expatriate quota.)49 Upon submission of the application, with the requisite supporting documents, as well as any additional information that may be requested, the application will be processed and, if approved, the EQA, listing the positions to be occupied by expatriates, will usually be granted for up to two years, subject to renewal.50 The employer company is required, during the term of the EQA, to submit a monthly report in the format prescribed by the NIS on the utilisation of the granted expatriate quota.
Applicants should, however, be aware that the EQA process is designed to enable technology transfer to Nigerian citizens and employers are expected to employ Nigerians to understudy the foreign experts for training purposes and to enable the acquisition of relevant skills by the Nigerian employee, with a view to taking over the position later.51 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 an STR visa
If the sponsor company successfully procures an EQA, the proposed expatriate employee seeking to take up employment in the country would next have to obtain a residence visa, or an STR visa as it is commonly known; an STR visa 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. Upon receipt, the visa application would be referred to the CGI by the immigration attaché at the embassy (see Section 20(4)(e) of the Act).
Application for a residence permit (regularisation of stay)
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 commonly known as CERPAC. This permit enables a non-Nigerian to reside and work in Nigeria, or to accompany a resident or citizen of Nigeria as a dependant. Thus all non-Nigerians and persons not from the Member States of ECOWAS who intend to reside and work in Nigeria for a period in excess of 90 days, must apply for and obtain this permit.52
Residence permits are also available to the dependants of the principal immigrant, provided that the period of validity of the dependants' residence permits do not exceed the period of validity of the principal immigrant's own residence permit.53
The application for the permit is to be submitted within three months of entry into the country and penalties exist for non-compliance under Section 57(5) of the Act and Regulation 47 of the Regulations. The cost of application was recently increased by the Ministry from US$1000 to US$2000, but it is anticipated that there will be no further review of CERPAC fees for a period of three years. The permit, once obtained, is valid for up to two years, but an application for renewal can be submitted to the CGI. Account should now also be taken of the directive of the CGI, effective from 1 January 2018, which makes the renewal of permits held by foreign nationals residing in Nigeria conditional upon the possession by them 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 its ongoing efforts to improve the ease of doing business in the country.
Finally, while previously expatriates were also expected to apply for re-entry visas to enable them to enter and exit the country during the pendency of the permit, the residence permit now serves as a multiple-entry permit, by virtue of Section 18(2) of the Act.
Application for a temporary work permit for short-term services
Under Section 37(8) of the Act and Regulation 8 of the Regulations, the CGI is authorised to issue temporary work permits (TWPs) outside the quota provision, which are available for experts invited by corporate bodies to provide specialised or skilled services for a short time period. A TWP is only obtainable from the office of the CGI in the NIS, subject to the submission of an application supported by a confirmed airline return ticket and acceptance of immigration responsibility (IR) by the inviting organisations or individuals, and is issued by way of a letter of approval transmitted to the appropriate Nigerian mission.54 The TWP, when issued, is usually valid for three months, but can be renewed in-country.
Both the 2015 Act and the Regulations impose strict penalties for non-compliance with the requisite processes described above, including a prison term of three years or a fine of 500,000 naira, or both, for failure to regularise a stay or renew a residence permit or TWP within the prescribed periods, and, potentially, also a deportation order for unauthorised change of employment under the EQA scheme.55
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 Act56 and related labour regulations.57 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).58
While the 2011 Guidelines, to encourage technology transfer, provide for the specific procedures to be followed for applications for expatriate quota approval, the 2015 Guidelines, in a bid to preserve local jobs, imposes an obligation on employers to seek the consent of the director of the DPR prior to disengaging an employee and imposes stiff penalties for non-compliance with its provisions. More specifically, the 2015 Guidelines provide that:
the holder of an oil mining lease, licence or permit issued under the Petroleum Act, or under any regulations made thereunder or any person registered to provide any services in relation thereto, shall not remove any worker from his employment except in accordance with guidelines that may be specified from time to time by the Minister of Petroleum Resources.59
iii Rights and duties of sponsored employees
The residence permit (for regularisation of stay) issued to sponsored employees is a temporary one, for a period of up to two years, subject to renewal. The avenues for a sponsored employee acquiring a permanent residence permit under Nigerian immigration law are very limited, although employees who are married to Nigerian citizens may be issued with a residence permit (which will serve as a multiple re-entry permit) irrespective of the class of visa with which the employee first entered Nigeria, and provided also that any conditions imposed have been complied with.
With regard to duties to be discharged by sponsored employees in the country, account should be taken of any conditions that may have been endorsed on the residence permit of the employee by the CGI, provided that the conditions are not inconsistent with the provisions of the Act, by virtue of Section 37(5) of the Act. Cognisance should also be taken of additional duties stipulated in the provisions of the Regulations, which are required to be discharged generally by foreign nationals residing or staying in Nigeria, including but not limited to the following requirements:
- 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.60
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
Foreign investors wishing to enter the country for the purpose of establishing a business or engaging in self-employed activities, should take account of the provisions of Section 36(1)(b) of the Act and Regulations 4 and 12 of the Regulations. By virtue of these provisions, any person other than a citizen of Nigeria is precluded from practising a profession or establishing or taking over any trade or business whatsoever, whether alone or in partnership with any other person, or from registering or taking over a company with limited liability for any such purpose, without the consent in writing of the Minister in the form of a grant of a business permit.61 Additionally, the provisions of CAMA state, in Section 54(1), that 'every foreign company, which was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria . . . shall not carry on business in Nigeria or exercise any of the power of a registered company' until so incorporated.
Accordingly, foreign nationals interested in investing and carrying on business in Nigeria would be required to procure the necessary written consent from the Minister, and also create a local corporate entity for this purpose; the following preliminary steps should therefore be taken:
- ensuring the incorporation of a local company for the purpose of carrying on business, in accordance with the applicable provisions of CAMA and other relevant statutes.62,63
- 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.
With respect to foreign entrepreneurs and investors seeking to enter Nigeria on a short-term basis, prior to the establishment of any long-term presence in Nigeria, consideration can be given to the VoA, which is a class of short-visit visa64 provided for under the Regulations65 and issued at the discretion and authorisation of the CGI. This non-renewable visa, which may be issued at the port of entry, is, however, only available for a period not exceeding three months and is issued on the premise that the recipient will not engage in any form of paid employment. Applications may be submitted by email or through a Nigerian-based representative and should be processed within 48 hours. Approval takes the form of a visa approval letter, which the traveller must be in possession of before proceeding to Nigeria, with the visa subsequently being issued at the point of entry.
Alternatively, applications can still be submitted for the issuance of a business visa, which is obtainable from the Nigerian diplomatic mission in the applicant's country of residence, and is also valid for a period of 90 days. However, the visa cannot be extended; nor does it allow the visa holder to engage in paid employment.
Investors seeking to invest in the long term should also be aware of provisions in both the Act and the Regulations,66 which enable high net worth investors that invest a minimum 'threshold of capital' over a period67 to be issued with a permanent residence permit; the permit may, however, be revoked if the foreign national withdraws its investment from Nigeria.68
VI OUTLOOK AND CONCLUSIONS
With Nigeria still being a major business hub for West Africa, and therefore a gateway for Africa as a whole, it is anticipated that immigration will continue to make a significant contribution to the nation's economic growth.
The systematic reforms and policy changes that have been initiated by the PEBEC, for the purpose of easing the climate for doing business in Nigeria, complemented by recent changes in law, all represent steps in the right direction towards bringing immigration practice and procedure in Nigeria into greater alignment with global best practices.
Additionally, the laudable efforts of the NIS and other MDAs, such as the CAC, should also be noted as they have continued to effectively embrace the use of IT tools in respect of processes and operational procedures, and, in so doing, have displayed more transparency and enabled an enhanced service delivery. Notwithstanding the collective efforts of these authorities, it is recommended that continued collaboration between the relevant MDAs responsible for migration laws, policies and enforcement be encouraged, so as to ensure the sustained evolvement of immigration laws and effective migration management and policy enforcement.
1Adekemi Sijuwade is a partner at Advocaat Law Practice.
2Cap I1, Laws of the Federation of Nigeria, 2004, now repealed. The Act also repeals the Passport (Miscellaneous Provisions) Act, Cap P1, Laws of the Federation of Nigeria, 2004. See Section 114 of the Act.
3Section 112(1) of the 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.
4See Part I, Regulation 1 of the Regulations.
5Section 1 of the 2015 Act.
6Applications can be submitted online via the NIS portal.
7Where 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, by virtue of Section 20(3) of the Act.
8Section 19(6)(b-c) of the Act.
9Section 19(6)(d) of the Act.
10Section 18(1)(c) and 19(6)(a) of the Act. A prohibited immigrant is further defined in the provisions of the Act as a person liable to be refused entry or deported under the Act and includes, but is not limited to, a person without visible means of support, a mentally ill person, a person convicted of a crime, as well as anyone whose admission would, in the opinion of the Minister, be contrary to national interest or security; by virtue of Section 44 of the Act.
11Section 18(1)(d) of the Act.
12Section 18(1)(e) of the Act. By virtue of Section 19 of the 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.
13See Sections 56–60 and Sections 105 and 106; see also Regulations 44–53.
15The official exchange rate of dollar to naira at the time of writing is approximately 305 naira to US$1.
18Regulations 34 and 35.
20Section 96(2) of the Act.
21Section 48(1) of the Act.
22Section 48(1) of the Act. Additionally, the Minister is granted power under Section 55(1) to apply to the court for a receiver and manager in respect of a business previously owned by a person who has been detained or deported, where it appears to the Minister that it should be wound up.
23See Part I of the Act and Part IX of the Regulations.
24As defined in the 2015 Act, Section 116.
25The functions of the NIPC are as stipulated under Section 4(h) of the Nigerian Investment Promotion Commission Act No. 16, 1995 (the NIPC Act).
26The Company and Allied Matters Act, Cap C20, LFN 2004.
27The detailed objectives, functions, powers and structure of the National Planning Commission are outlined under Sections 2, 3 and 5 of the Establishment Act.
28The 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.
29Provided that such citizens register with the NIS as ECOWAS nationals; see Section 37(13) of the Act.
31By virtue of Section 25(1)(b) of the Nigerian and Mining Minerals Act 2007.
32Export processing zones are areas in which businesses are exempt from the normal legal regime applicable in Nigeria, particularly in some aspects of immigration procedure, and also with regards to 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.
33By 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 on them 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.
34Nigeria 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.
35In 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.
36By virtue of Section 37(13) of the Act.
37The 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 CBN and representatives from the National Assembly, state governments and the private sector.
38The 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.
39NAPs on the Ease of Doing Business in Nigeria.
40The first and second NAPs focused on reforms on processes and permits in government and saw an improvement in Nigeria's ranking in the World Bank's 2018 Doing Business Index, as Nigeria moved 24 places from 168 to 142. The third NAP (which ended on 5 April 2018), was aimed at deepening reforms for the Nigerian business environment, with a focus on the easing of migration into and out of Nigeria, trading across borders and trading within Nigeria, among others.
41An order to ministries, departments and agencies on how to act or use resources under their care; such orders are gazetted (i.e., published in the government's official daily journal) and made enforceable by law.
42The PEBEC recently commenced the fourth 60-day NAP (NAP 4.0) on the Ease of Doing Business, which will run from 1 March to 29 April 2019. NAP 4.0 aims to further reduce the challenges encountered by small and medium-sized enterprises's and businesses in identified areas of focus, such as starting a business, getting credit, paying taxes, enforcing contracts or trading within and across borders, among other things, by eliminating critical bottlenecks and constraints to doing business in Nigeria.
43The EO1 also specifically mandated that ordinary tourist and business entry visas to Nigeria be issued or rejected with reason within 48 hours of receipt of valid application; and that the VoA issuance process be carried out in a transparent manner, with all VoAs granted at all Nigerian ports of entry once applicants have met all the published requirements.
44Stakeholders continue to anticipate and observe the degree of impact that EO5 will have on immigration practice and procedure, particularly on the level of foreign participation in procurement activities in the country.
45The NIS Handbook provides detailed information about the requirements, conditions and fees required for immigration-related applications.
46By virtue of Section 36(1) of the Act and Regulation 12(3) of the Regulations.
47By virtue of Section 36(2) of the Act.
48See Regulation 12 of the Regulations regarding the authority of the Minister to issue the EQA.
49To 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.
50Under Regulation 12(2) of the 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.
51A corporate entity is required under Regulation 52 of the Regulations to engage Nigerian employees to understudy expatriate employees and refusal to comply with this provision is an offence, as is the use by an unauthorised organisation of expatriate quota positions granted to another organisation (see Regulation 52(7–8) of the Regulations). These provisions underline the increased scrutiny to which the use of the expatriate quota process has or is being subject.
52See Sections 37(1)(2) and (6) of the Act.
53See Regulation 13 of the Regulations.
54See Regulation 8 of the Regulations.
55See Sections 57(5) and Section 58 of the Act and Regulation 47 of the Regulations.
56Cap L1, LFN 2004.
57Cognisance should also be taken of applicable international treaties ratified by Nigeria, including its ratification of the International Labour Organisation Employment Convention, by virtue of Section 37 of the Labour Act, which enables cognisance of international agreements ratified by Nigeria.
58The 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.
59Since 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.
60See Regulations 18, 26 and 33(1) of the Regulations.
61By virtue of Section 36(1)(b) of the Act and Regulations 4 and 12 of the Regulations.
62Section 54 of 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.
63Section 56 of 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 CAMA.
64The short visit visa, provided for under Sections 20(7) and 37(9) of the Act, is a measure designed to attract potential investors and high-profile travellers to Nigeria, which is available 'to frequent business travellers of international repute, executive directors of multinationals, members of government delegations, holders of a UN, AU and ECOWAS laissez-passer, as well as holders of any other official travel documents of other recognised organisations.
65See Regulation 9 of the Regulations.
66Regulation 5(7) of the Regulations and Section 37(11) of the Act.
67By virtue of Section 37(11) of Act, the threshold capital would be determined from time to time in the national visa policy or any other policy.