The Corporate Immigration Review: Ghana

Introduction to the immigration framework

Ghana is located on the west coast of Africa. It is bounded by Burkina Faso to the north, Ivory Coast to the west, Togo to the east and the Gulf of Guinea to the south. It has a social, political and economic environment that is most conducive to business and is certainly one of Africa's leading economies.

All foreigners who intend to enter or transit through Ghana's territory must first obtain a Ghana entry visa from a Ghanaian consulate abroad and must also be in possession of a valid passport or travel documents establishing the identity of the holder before they travel to Ghana. However, citizens of the Economic Community of West African States (ECOWAS)2 and also more recently citizens from the remaining African Union (AU) countries are exempted from applying for visas but are required to obtain an entry visa stamp on arrival at the international airport in Accra.

The Ghana Immigration Service (GIS) is the key agency responsible for immigration in Ghana. However, Ghana's immigration landscape accommodates various other actors (i.e., agencies and regulators) who play various roles in the overall immigration processes pertaining to work authorisation for foreign assignees in their respective sectors.3 These include the Petroleum Commission in respect of oil and gas companies, and companies offering services to the petroleum sector, the Minerals Commission for mining companies and mining support companies, the Ghana Investment Promotion Centre (GIPC) for companies with foreign shareholdings, and the Ghana Free Zones Authority for companies registered as free zone companies.

These actors' involvement in Ghana's immigration processes can include issuing automatic immigrant quotas, or control over all work authorisation processes for companies intending to employ foreign nationals.

i Legislation and policy

Ghana introduced the national migration policy in 2016, aimed at bringing migration issues into the spotlight and improving various aspects of Ghana's immigration management and control activities, and ultimately facilitating the achievement of an improved immigration compliance practice in Ghana. The primary legislation governing immigration in Ghana is the Immigration Act4 and the Immigration Regulations5 passed pursuant to the Act. This legislation serves as the primary source for all immigration services provided in Ghana. The GIS is the frontline agency responsible for the entry, residence and employment of foreign nationals in Ghana in accordance with the provision of the Immigration Act. Other pieces of legislation with a bearing on migration issues include the Ghana Investment Promotion Centre Act 2013 (Act 865) (GIPC Act); and the Free Zone Act 1995 (Act 504).6

There are two main types of work permit issued by the GIS: temporary and long-term work permits. The former is valid for six months and the latter is usually valid for a year. Temporary permits are non-renewable while long-term work permits may be renewed upon an application to the Director of Immigration.

The GIPC Act guarantees issuance of automatic immigrant quotas to companies with foreign participation operating in Ghana. These quotas are issued based on the company's level of investment or foreign paid-up capital. Irrespective of the above-mentioned immigrant quotas, the GIS may refuse to grant a visa to an expatriate to whom a quota relates, where the GIS has sufficient reason to believe that the expatriate is not a desirable person and should not be permitted to enter the country.7

ii The immigration authorities

The main agency responsible for immigration is the GIS, which falls within the remit of the Ministry of Interior.

The GIS is tasked with performing the core immigration function of monitoring movement into and out of the country, regulating the activities of foreigners, issuance of permits and visas, and monitoring and investigating breaches of the immigration laws and regulations. It is further tasked with ensuring compliance with the provisions of the GIPC, social security and income tax laws, issuance of permanent residence status and indefinite stay status to deserving applicants, detention, removals, passport processing, collaboration with other agencies, refugees and asylum assistance and border patrol.

The Ministry of the Interior, on the other hand, is mandated to ensure internal security, prevent and manage internal conflicts and disputes, manage crime prevention and prosecution of offenders, rehabilitation and reform of prisoners, protection of the country's frontiers, immigration control and monitoring of the activities of illegal immigrants, the repatriation and deportation of illegal aliens and the extradition of fugitive criminals.

iii Exemptions and favoured industries

ECOWAS exemptions

ECOWAS citizens are offered preferential treatment, such as the right to enter Ghana, reside and establish a business during a stay of not more than 90 days. However, citizens must be in possession of a valid travel document and an international health certificate.

GIPC exemptions

The GIPC encourages foreign investment in a number of sectors. These include agriculture and agro-processing, information and communications technology, infrastructure, energy, healthcare and food processing.

Incentives and benefits are provided to these sectors, including customs duty exemptions on equipment imported for investment purposes; general free transferability of capital,8 profits and dividends; insurance against non-commercial risks;9 double-taxation agreements to rationalise the tax obligations of investors to prevent double taxation; and automatic immigrant quotas.10

International treaty obligations

On 28 May 1975, in Lagos, Nigeria, with 14 other Member States, Ghana signed the treaty establishing ECOWAS. This treaty was created to promote economic trade, national cooperation and monetary union for growth and development throughout West Africa.11

Citizens of Member States may freely enter Ghana and they have the right to work and undertake commercial activity provided they possess a valid travel document, residence card or permit and have registered the company. They also have the right to reside in Ghana as long as they have an approved passport and have gained admission through the approved port of entry.12

However, it is not permissible for ECOWAS citizens to reside illegally or enter into Ghana illegally. Thus Ghana can refuse entry to any ECOWAS citizen that falls within the category of inadmissible immigrant under its laws.

On March 2018, Ghana signed the African Union Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Right of Establishment (AU Protocol). Among other things, the provisions in the AU Protocol (which are akin to those of the ECOWAS Protocol)13 sought to permit free entry for citizens of the African Economic Community through adoption of the AU passport by 2018.14 To date, Ghana has not implemented the AU Protocol, although it has implemented a policy15 permitting African nationals (as well as ECOWAS citizens) to travel to Ghana without a pre-approved visa and to be issued with a visa on arrival for a stay of up to 30 days. Given a backdrop against which trade and movement of persons are considered inseparable, the achievement by the AU of the provisions of the Protocol has been ambitiously tied to the African Continental Free Trade Agreement, which was adopted by a sizeable number of Member States around the same time as the Treaty on Free Movement was adopted. This Agreement created the African Continental Free Trade Area (AfCFTA), the largest free-trade area in the world since the formation of the World Trade Organization.

The year in review

i Covid-19 pandemic and its impact on immigration

Novel coronavirus (Covid-19) had its first recorded cases in Ghana in March 2020. Since then, various measures have been implemented including closure of borders (air, sea and land), partial lockdowns of certain major cities considered hotspots, a reduction of the number of persons allowed to gather at functions, suspension of some activities and restriction on the use of some public places.

The air border was opened for international travel from 1 September, 2020,; however, the land and sea borders remain closed. A new policy requiring travellers to undergo a covid-19 PCR test not more than 72 hours before embarkation and a mandatory covid-19 test upon arrival at the airport terminal after disembarkation have been introduced. Special concessions have been granted to children in respect of the mandatory covid-19 tests at the airport and special rates introduced for members belonging to the subregional group ECOWAS. All foreign missions in Ghana are open, but some are operating during limited periods. The majority of Ghana's missions abroad are open, but the few that are closed include Tel Aviv and Madrid. Travellers from these regions are eligible to obtain a pre-approved visa on arrival to travel to Ghana.

Overall, the pandemic has had a huge impact on foreign workers specifically and global mobility generally as closure of many airports around the globe restricted business travel and travel for employment. Employees were stranded in various countries unable to return to continue with their employment while others could not return home. A lot of companies had to suspend existing contracts due to their inability to execute due to the lockdowns and restrictions preventing key personnel deployment. During this period there was a renewed drive to encourage remote working as physical movements become restricted.

ii AfCFTA

Despite some growth, statistically Africa's global trade share remains less than 3 per cent and export diversification has yet to be achieved. Intra-African trade remains below its potential, accounting for less than 20 per cent of the total African trade volume in 2017 compared to intra-continent trade in Europe (69 per cent), Asia (49 per cent) and Latin America (22 per cent). Following the adoption of the AU Protocol and subsequently the adoption of the AfCFTA, Africa's potential as the new frontier of business and investments appears to be on track to be realised. AfCFTA's main aim of creating a single market for goods and services in Africa has a huge potential to create the world's largest single market of about 1.2 billion consumers and workers. The vision behind AfCFTA is to increase opportunities for African manufacturers and businesses (especially micro and small businesses), with an intentional focus on benefitting women and youths on the continent. If properly implemented, it is expected that AfCFTA could boost Africa's economy to US$29 trillion by 2050 from the current size of US$2.6 trillion. AfCFTA has been signed by all AU countries (except for Eritrea) and has been ratified by 22 AU countries.

Employer sponsorship

All foreigners who intend to work in Ghana must be sponsored by a host entity in Ghana. An offer letter or a valid contract must exist between the host entity and the assignee to trigger the work authorisation process.

Foreign nationals may only work in Ghana after obtaining a work permit issued to the company by the GIS or an automatic immigrant quota issued by the GIPC. A holder of a work permit or GIPC quota must subsequently apply to the GIS for a residence permit to be fully authorised to work.

i Work permits

It is mandatory for all foreign nationals seeking work in Ghana to have a relevant work permit. Corporate bodies and other institutions that wish to employ foreign nationals may obtain work permits for these employees upon application to the Ministry of the Interior through the Director of the GIS. As mentioned above, there are two main types of work permit issued by the GIS: temporary and long-term work permits. Generally, the requirements for obtaining a work permit are as follows:

  1. from the employer:
    • business registration documentation;
    • corporate tax clearance certificate;
    • application letter;
    • audited accounts (if available);
    • letter of support from government agencies (where applicable);
    • GIPC registration certificate (if applicable);
    • completed, signed work permit application form; and
    • offer or appointment letter, or contract of employment; and
  2. 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).

Residence permits

The residence permit allows multiple entries into Ghana by the holder during the period of validity of the permit. An application for a residence permit may require an assignee to surrender his or her passport during consideration of the application. Other conditions must also be met before a residence permit is issued, including providing a copy of the applicant's non-citizen identification card and passport-size photographs.

Dependants of a residence permit holder must demonstrate their connection to the permit holder to be issued with a residence permit. A spouse may be required to submit evidence of marriage and copies of relevant birth certificates may be required for children. No work for remuneration by those on a dependant's permit is permitted.

Benefits include:

  1. multiple entries into Ghana during the period of validity of the residence permit;
  2. dependent children may enrol in schools and are entitled to all benefits accorded to Ghanaians; and
  3. access to all services, including banking and insurance.

Additional requirements of regulators and government agencies

Additional requirements may be imposed by government and regulatory agencies that play a part in the work authorisation process. These include the GIPC, the Free Zones Authority, the Petroleum Commission and the Minerals Commission. Their level of involvement varies from simply issuing automatic immigrant quotas to complete control of the process. Companies that fall within the sectors overseen by these bodies must register with the relevant regulatory agency.

Appeals

A person (other than a prohibited immigrant)16 aggrieved by a refusal to grant or renew his or her permit, or by a revocation of permit or repatriation, may petition the Minister of Interior for redress within seven days of the action and the Minister may take appropriate action to redress the matter.17 Recourse to the law courts is also available to an aggrieved party in respect of a decision of the immigration authorities.

ii Labour market regulation

The Constitution of Ghana offers protection to all persons in Ghana.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 Act19 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 National Labour Commission (NLC) was established by law to receive complaints from workers, trade unions, employers and employers' associations in the settlement of industrial disputes.26 In settling disputes, the NLC 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 NLC is the main administrative adjudicating body in charge of ensuring a congenial atmosphere for all labour market participants. The NLC has resolved countless industrial disputes using effective industrial relations mechanisms outlined in the Labour Act, the NLC Regulations29 and the Labour Regulations.30

Its duties include receiving labour-related complaints, facilitating the settlement of industrial disputes, settling industrial disputes and promoting effective cooperation between labour and management.

The establishment of the NLC has enhanced cooperation between social partners, which has translated into a harmonious industrial relations environment in the country.

Pension contributions

Since July 2013, the National Pensions Regulatory Authority has required foreigners working in Ghana to make social security contributions. The definition of a worker under the National Pensions Act31 covers all workers, including foreign workers, who are therefore required to make the statutory pension contribution. Employees are expected to make a mandatory contribution of 5.5 per cent of their basic salary to the scheme on a monthly basis while the employer makes a compulsory contribution of 13 per cent on a monthly basis. Employees may elect to make additional voluntary contributions. There is also voluntary coverage for self-employed persons and previously insured persons who are unemployed. The Act provides for a sanctions regime for non-compliance.32

Local content

An employer engaging the service of a foreign national in Ghana must present evidence to satisfy the GIS that attempts have first been made to recruit a Ghanaian to the position.33 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.34 Companies in the oil and gas sector are required to submit local-content plans for approval of the Petroleum Commission prior to registration to undertake petroleum activities.35 It is further required that the local-content plan should contain a sub-plan on employment and training of the Ghanaian workforce.36 Preference must also be given to Ghanaian companies in the acquisition of goods and services.37

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.38

Non-residents are liable for tax on income earned or derived in Ghana. They are not liable for tax on income brought into Ghana or received from a source outside Ghana. Tax relief is available where Ghana has a tax treaty with the applicable country.39

iii Rights and duties of sponsored employees

Rights

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 Constitution.40 As with many countries, foreign nationals working in Ghana are also accorded certain rights and privileges enjoyed by Ghanaian41 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.42 These include the right to work under satisfactory, safe and healthy conditions, to receive equal pay for equal work without discrimination of any kind and to receive information relevant to the work undertaken.43

Duties

Sponsored employees have a general duty to comply with the laws of Ghana44 and to comply fully with the conditions of their employment.45 These include:

  1. an obligation to notify the Director of Immigration within seven days of commencement of employment or cessation of employment;46 and
  2. 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.47

The Labour Act of Ghana further imposes general duties on workers, including the following:

  1. to work conscientiously in the lawfully chosen employment;
  2. to enhance productivity;
  3. to obey lawful instructions regarding the organisation and execution of the work undertaken; and
  4. to take proper care of the property of the employer entrusted to the worker or under the immediate control of the worker.48

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.49

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.

i GIPC

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:

  1. for a joint enterprise with a Ghanaian partner, the minimum capital requirement is US$200,000 or its equivalent in capital goods;
  2. for a wholly foreign-owned enterprise, the minimum capital requirement is US$500,000 or its equivalent in capital goods; and
  3. for a trading enterprise irrespective of whether it is wholly or partly owned by a non-Ghanaian, the minimum capital requirement is US$1 million and the enterprise shall be required to employ at least 20 skilled Ghanaians.

There are benefits for business entities that register with the GIPC, including immigrant quotas and other investment guarantees.50

In addition, 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.51 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.52

ii Skilled migrants

Ghana does not have a skilled migrant policy; however, companies can 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.

Outlook and conclusions

The benefits envisaged after the Year of Return initiative in 2019 saw a huge setback with the advent of covid-19. The pandemic saw a slow growth in the economy and adversely affected numerous businesses. Investments suffered as some companies went out of operation and others downsized. With borders closed, foreign direct investments slowed considerably. Despite these challenges, there were some positives as companies tried to adopt to the new normal through the implementation of remote working modules, restricting business travel to only essential personnel within organisations to protect workers and prevent the spread of the virus. With the global effort to roll out vaccines, there is a glimmer of hope that should ensure confidence in travel returns and with it growth in the economy. Under the COVAX53 programme, Ghana has started to receive its share of covid -19 vaccines.

With the opening up of Ghana's borders, Ghana stands to continue with its role in AfCFTA, boosting the fortunes of the country in attracting the needed foreign investment.

In conclusion, the economic outlook for the country is expected to be positive.

Footnotes

1 Paa Kwesi Hagan is managing partner at Globetrotters Legal.

2 ECOWAS is a regional group of 15 West African countries founded on 28 May 1975 with the signing of the Treaty of Lagos. Its mission is to promote economic integration and share development of the West Africa subregion.

3 Section 29 of the Immigration Act 2000 (Act 573) recognises the role of other agencies or enactments in the granting of quotas.

4 Immigration Act 2000 (Act 573).

5 Immigration Regulations 2001 (LI 1691).

6 Sections 28, 29, 30, 31, 34 and 35 of Act 504.

7 See Section 23(1)(4) of the Ghana Investment Promotion Centre Act 2013 (Act 865).

8 Section 32 of Act 865.

9 Ghana is a signatory to the World Bank Multilateral Investment Guarantee Agency Convention.

10 Section 35 of Act 865.

11 Members are Benin, Burkina Faso, Cape Verde, Gambia, Ghana, Guinea, Guinea Bissau, Ivory Coast, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo.

12 Article 27(2) of the ECOWAS Treaty.

13 ECOWAS Protocol relating to Free Movement of Persons, Residence and Establishment (Protocol A/P 1/5/79).

14 Articles 6 and 7 of the AU Protocol to the Treaty Relating to the Establishment of Free Movement.

15 Following an announcement made by the President of Ghana in July 2015.

16 Prohibited immigrants include those with a deportation order in force against them, those whose activities are contrary to the laws of Ghana and those who have been declared by a medical officer to be medically unfit to enter Ghana.

17 Section 46 of Act 573; however, the petition is not a stay of the action that is the subject of the petition.

18 Article 12(2) states that 'Every person in Ghana, whatever their race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.'

19 The Labour Act 2003 (Act 651) is a comprehensive law consolidating all the laws relating to labour, employers, trade unions and industrial relations.

20 Section 175 of Act 651.

21 Sections 8, 9, 10 and 11 of Act 651.

22 Sections 15, 17 and 18 of Act 651.

23 Sections 63 and 64 of Act 651.

24 Sections 79 and 80 of Act 651.

25 Sections 127, 128, 129, 130 and 131 of Act 651.

26 Sections 135 and 139 of Act 651.

27 Section 139(2) of Act 651.

28 Section 134 of Act 651.

29 NLC Regulations 2006 (LI 1822).

30 Labour Regulations 2007 (LI 1833).

31 In Section 211 of the National Pensions Act 2008 (Act 766), the definition of a worker includes:

a person who is employed for salary in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets his salary, directly or indirectly from the employer, and any person employed by or through a contractor in or in connection with the normal work of the establishment, who is:

(a) employed in this country but not as a member of the crew of any ship; or

(b) employed as a permanent resident of Ghana:

(i) as a member of the crew of a ship, the owners of which have an office or agents in Ghana; or

(ii) outside Ghana but employed by an employer in Ghana.

32 See Sections 200 and 201 of Act 776.

33 Priority is to be given to Ghanaians in Regulation 9(1)(a) of the Petroleum (Local Content and Local Participation) Regulations 2013 (LI 2204).

34 See also the Petroleum (Local Content and Local Participation) Regulations 2013 (LI 2204).

35 Regulation 7 of LI 2204.

36 Regulation 9(3) and 17 of LI 2204.

37 Regulation 11 of LI 2204.

38 Section 160 of Internal Revenue Act 2000 (Act 592).

39 Section 111 of Act 592.

40 Section 12(2) of the 1992 Constitution 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.'

41 See Labour Act 2003 (Act 651), National Labour Commission Regulations 2006 (LI 1822) and Labour Regulations 2007 (LI 1833).

42 See the definition of a worker in Section 175 of Act 651.

43 Section 10 of Act 651.

44 Section 8(1)(h)of Act 573.

45 The foreign employee is prohibited from changing his or her employment.

46 Section 30 of Act 573.

47 Section 31 of Act 573.

48 Section 11 of Act 651.

49 Act 865 is the primary law promoting foreign direct investment into Ghana.

50 These include full repatriation of dividends and net profit attributable to the investment made in the enterprise, payments in respect of loan servicing where a foreign loan has been obtained, and fees and charges in respect of technology transfer agreements registered with the centre, as well as guaranteed protection from expropriation.

51 Section 31 of Act 865.

52 Section 33 of Act 865.

53 The COVAX programme is led by the vaccine alliance GAVI, the World Health Organization and the Coalition for Epidemic Preparedness Innovations in partnership with UNICEF, vaccine manufacturers and the World Bank, among others. The aim is to ensure equitable distribution of covid-19 vaccines globally.

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