PRELIMINARIES:

A Work Permit is an authorization in writing issued by the immigration authorities of any state (country) to aliens, permitting them to work within the territory of the issuing state for a specified period. In simpler terms, it is permission granted to take up employment in a foreign state.

Section 116 of the Immigration Act, 2015, defines a Work Permit as a document that allows a non-Nigerian expert to reside and work in Nigeria for a specified period of time.”

REGULATORY FRAMEWORK:

Prior to 25 May 2015, the Immigration Act Cap I1 Laws of the Federation of Nigeria 2010 – a 1963 legislation – was the foremost regulatory framework guiding the application and qualification for, exemption from and revocation/variation of Work Permits in Nigeria. However, by virtue of Section 114 of the Immigration Act, 2015, which repealed the Immigration Act Cap I1 Laws of the Federation of Nigeria 2010 and the Passport (Miscellaneous Provisions) Act Cap P1 Laws of the Federation of Nigeria 2010, the Immigration Act, 2015 currently regulates immigration matters, including the issuance of Work Permits.

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ISSUING AUTHORITY:

The Nigeria Immigration Service, established under Section 1 of the Immigration Act, 2015, is the agency of the Federal Government vested with the authority to issue Work Permits to aliens under the Act.[1]

The basis for the issuance of Work Permits is contained in Section 36(1)(a) of the Act, which provides that:

No person other than a citizen of Nigeria shall accept employment (not being employment with the Federal, State or Local Governments) without the consent in writing of the Comptroller-General of Immigration.

In an apparent validation of this provision, Section 38(1) of the Act goes further to stipulate that an application for a Work Permit must be made particularly to the Comptroller-General of the Nigeria Immigration Service, who has the authority to either issue or deny same. The section is reproduced below:

Where a person in Nigeria is desirous of employing a person who is a national of any other country he shall unless exempted under this section make application to the Comptroller-General of Immigration in such manner as may be prescribed and shall give such information as to the provision to be made for repatriation of that national and his dependants as the Comptroller-General of Immigration reasonably requires and no such person shall be employed without the permission of the Comptroller-General of Immigration given on such terms as he thinks fit.

QUALIFICATION FOR OBTAINING A WORK PERMIT:

First, it must be clarified that, despite the fact that a Work Permit is issued in favour of a particular alien, it is the duty of a prospective employer to apply for it. This was so held in Oliver v Dangote Industries Ltd (2009) 10 NWLR (PT. 1150) CA 467, when the court was called upon to give effect to the provision of Section 34 of the Immigration Act, 1963, which is pari materia with the provision of Section 38 of the current Act reproduced above.

From the combined effect of Sections 36 and 38 of the Act, it is clear that before there can be a grant of a Work Permit, the prospective employer must satisfy the Comptroller-General of Immigration in writing of the following:

  1. That the person to be employed is an alien;
  2. That there exists a vacancy on the organisation’s expatriate quota which the prospective employee is intended to fill;[2]
  3. That it accepts to bear Immigration Responsibility (IR) with regards to the prospective employee and his dependants.

EXEMPTION FROM OBTAINING WORK PERMITS:

Although aliens must, as a general rule, obtain Work Permits before they can take up any employment in Nigeria in line with Sections 36(1)(a) and 38 of the Immigration Act, 2015, they can be exempted from obtaining Work Permits under the following circumstances:

  1. Where the alien is employed or is to be employed by the Federal, State or Local Government;[3]
  2. Where the alien is a West African and has been registered as a national of the Economic Community of West African States by the Nigeria Immigration Service;[4]
  3. Where the Minister charged with the responsibility for immigration exempts any alien on such conditions as he thinks fit.[5]

TYPES OF WORK PERMITS:

There are generally two types of Work Permits, namely:

  1. Residence Work Permit: This has already been previously explained in D This refers to a Work Permit of a “permanent kind,” which is granted by the Nigeria Immigration Service in favour of an alien to fill the expatriate quota given to a company.[6] It is usually granted for a specified but long period of time.
  1. Temporary Work Permit (TWP): This is the kind of Work Permit granted in favour of casual expatriate staff employed to carry out a specific temporary engagement.[7] Usually, such engagements would involve the provision of specialised skilled services, such as after sales installation, maintenance, repairs of machines & equipment.[8] An application for a Temporary Work Permit would usually be accompanied with evidence of a confirmed airline return ticket of the expatriate.[9] Furthermore, the application must state the acceptance of Immigration Responsibility (IR) by the inviting organisation or individual.[10] Section 37(8) of the Immigration Act, 2015, makes it clear that expatriate quota is not considered in the review of an application for a Temporary Work Permit. Additionally, this kind of permit may be issued by a mere endorsement on any travel document or otherwise as the Comptroller-General of Immigration may direct.[11]

 WORK PERMIT AND RESIDENCE PERMIT:

A Residence Permit is usually required when an alien intends to take up permanent residence in Nigeria. Naturally, an alien applying for a Work Permit of a permanent nature (Residence Work Permit) should apply for a Residence Permit alongside. However, although this used to be the case, this requirement has been rendered unnecessary since the introduction of the Combined Expatriate Residence Permit and Aliens Card (CERPAC) by the Nigeria Immigration Service.[12]

PENALTIES FOR WORKING WITHOUT A VALID WORK PERMIT BY ALIENS:

There are legal implications for both the employer and the employee, where an expatriate is employed without having first obtained a valid Work Permit in his favour. Section 36(2) of the Immigration Act, 2015, provides that any alien desirous of entering Nigeria for the purpose of accepting employment “… shall produce the consent of the Comptroller-General of Immigration to an Immigration officer: and the failure to do so shall be an offence, and any person who commits such an offence shall be liable on conviction to a fine of N1,000,000 (one million naira) or deportation or both as a prohibited Immigrant.”

Conversely, where any person or company in Nigeria desirous of employing an expatriate does so without first obtaining a Work Permit in favour of such expatriate, he or it commits an offence under Section 38(5) of the Immigration Act, 2015, and such an offender shall be liable on conviction to imprisonment for a term of 5 years or a fine of N1,000,0000 (one million naira) or both.

Furthermore, Section 36(3) of the Act provides that where any expatriate loses his exemption from obtainment of a Work Permit, he is deemed to be a person seeking to enter Nigeria for the first time; therefore, he must obtain a valid Work Permit for him to continue in any employment he held prior to losing his exemption or before he takes up any future employment in Nigeria.

Again, where an offence under any of the provisions of the Immigration Act or any other relevant law committed by a body corporate is proved to have been so committed on the instigation or with the connivance of or is attributable to any neglect on the part of a director, manager, secretary of the body corporate, or any person purporting to act in any such capacity, Section 105(1) provides that the officer or person will be liable on conviction to imprisonment for a term of 3 years or to a fine of N2,000,000 (two million naira) or both: Provided that where the offence committed is an offence relating to smuggling of migrants, the director, manager, secretary or such other person purporting to act in any such capacity, the officer or person shall be liable to the penalty prescribed for individuals under the various provisions for such offences under this Act.

Section 105(2) of the Act further provides that where a body corporate is convicted of an offence under the Act, it is liable to a fine of N5,000,000 (five million naira). Additionally, the Court may issue an order to wind up the body. However, where a body corporate is convicted of an offence relating to smuggling of migrants, it is liable to a fine of N10,000,000 (ten million naira), and the Court may issue an order to wind up the body corporate, and its assets and property transferred to the Objects of Smuggling of Migrants Trust Fund.

Section 105(3) states, on its part, that nothing contained in subsections (1) and (2) above shall render any person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

REVOCATION OR VARIATION OF WORK PERMITS:

A Work Permit, like all other permits or licenses, may be revoked or even have its terms varied by the Comptroller-General of Immigration or anyone acting on his behalf. This is provided under Section 39 of the Act, which generally governs the revocation or variation of permits granted under the Act.  The provisions of Section 39 are reproduced below:

39 (1) The Comptroller-General of Immigration may at any time if he deems it to be in the public interest, revoke a resident permit or other permit under this Act or may issue a new permit on such conditions as he thinks fit and where any permit is revoked without replacement, the person affected shall be deemed to be a person seeking to enter Nigeria for the first time, and the Minister in his discretion, may issue a deportation order.

(2)    The Comptroller-General of Immigration may direct the holder of a permit to surrender it for replacement or he may re-issue it, with such additional or varied conditions as the circumstance may require: the failure to comply with any directives of the Comptroller-General of Immigration under this subsection shall be an offence and the offender shall be liable on conviction to imprisonment for a term of 5 years or a fine of N1,000,000.

[1] See also Section 2 of the Immigration Act, 2015, which lays out the General Duties of the Immigration Service.

[2] Nelson Ogbuanya, Essentials of Corporate Law Practice in Nigeria, (Novena Publishers, Lagos, 2010) 220; This is not a requirement for Temporary Work Permits. See Section 37(8), Immigration Act, 2015.

[3] Section 36(1)(a), Immigration Act, 2015.

[4] Section 37 (13), Immigration Act, 2015.

[5] Section 38(4), Immigration Act, 2015; This is usually the Minister of Interior or of Internal Affairs, depending on the most favoured appellation/description of any particular government. Currently, the Minister saddled with this responsibility is the Minister of Interior.

[6][6][6] Nelson Ogbuanya, op. cit., 220.

[7] Ibid.

[8] NIS, “Temporary Work Permit,” <http://www.immigration.gov.ng/index.php?id=15> accessed 18 October 2016.

[9] Ibid.

[10] Ibid.

[11] Section 37(8), Immigration Act, 2015.

[12] Nelson Ogbuanya, op. cit., 223.

chas
Author: chas