Review of the Corporate Immigration Framework

By Olivia Agbajoh

EMPLOYER SPONSORSHIP

ANY foreign national who possesses specialised and relevant skills, abilities and technical know-how required in Nigeria for the development of its economy may be employed to work in Nigeria for a period of time in order to transfer such skills, abilities and knowledge. Before such skilled foreign national can be employed in Nigeria, the employer must prove that no Nigerian citizen possesses the same skills, abilities and technical know-how; it must also have obtained a work permit for the prospective employee to the skilled migrant to work legally in Nigeria.

i. Work permits. No person can legally work in Nigeria without first obtaining a work permit subject to the consent of the Comptroller General of Immigration.

Two kinds of work permit can be issued: a TWP, if the employee’s services are only needed for a short time (e.g., for erection or installation work, feasibility studies, repairs of equipment, audit and accounting, research work); or a CERPAC, if the expatriate is to be employed for a long period of time or on a permanent basis (see Section I.i, supra).

Employment In Nigeria

Before a CERPAC can be issued, the expatriate seeking employment in Nigeria must obtain an STR visa at the Nigerian high commission in his or her country of residence. Upon application to the employer, without reference to the Comptroller. General of Immigration and upon entry into Nigeria, the expatriate will be regularised by the Nigerian Immigration Service within 90 days of the validity of the STR.

Employment criteria include the expatriate’s expertise, experience, qualificationsand investment amount, and also the need for certain skills in Nigeria for the development of the nation’s economy.

There are no statutory provisions for appeals by foreign nationals against the decisions of immigration officers and the Minister of Interior.

Investors, skilled migrants and entrepreneurs

Foreign nationals wishing to establish a genuine business in Nigeria or to invest in the nation’s capital market (whether directly or indirectly, through foreign direct investment or foreign portfolio investment) must obtain a business permit and other requisite permits and licences by applying to the Executive Secretary of the National Investment

Promotion Commission, and secure the authorisation of the Minister of Internal Affairs; failure to do so is an offence under Section 8(2) of the Immigration Act and will result in the deportation of such immigrant. By virtue of Regulation 3(2) of the Second Schedule of the Immigration Regulations, the business permit requires the applicant to state the name of his or her business, its nature and where it will be located.

A foreign company wishing to set up business operations in Nigeria should take all necessary steps to incorporate the Nigerian branch or subsidiary as a separate entity in Nigeria for that purpose. Until so incorporated, the foreign company may not carry on business in Nigeria or exercise any of the powers of a registered company.

A foreign investor wishing to incorporate a Nigerian subsidiary can do so by engaging the services of a lawyer in Nigeria; the lawyer will act as an agent of the
foreign investor who, by giving the lawyer power of attorney, authorises him or her to incorporate the Nigerian branch or subsidiary of the foreign company on behalf of the foreign investor.

Exemption from incorporation

By virtue of Section 56 of the Companies and Allied Matters Act, a foreign company that falls under any of the categories listed below may apply to the National Council of

Ministers for an exemption from incorporation (whether as a branch or a subsidiary). Section 56(a)–(d)8 provides exemptions for the following:

a. foreign companies invited to Nigeria by or with the approval of the government to execute any specified individual project;

b. foreign companies that are in Nigeria for the execution of a specific individual loan project on behalf of a donor country or international organisation;

c. foreign government-owned companies engaged solely in export promotion activities;

and d. engineering consultants and technical experts engaged on any individual specialist project under contract with any of the governments in the Federation, any of

their agencies or with any other body or person, where such contract has been approved by the government.

Once a business permit is obtained, the foreign investor or entrepreneur can only enter Nigeria through the approved port of entry (whether by land, overland or inland waters).

It should be noted that grant of a visa does not automatically guarantee entry into Nigeria; the foreigner’s documents will be subject to thorough scrutiny at the port of entry.

Outlook and conclusions

The Nigerian government has made efforts to create an enabling environment that is conducive for foreigners to come to Nigeria and invest in the country in order to contribute to the growth of the Nigerian economy. However, to successfully achieve this objective, some elements need to be addressed.

Nigeria’s immigration laws are obsolete; they have suffered abuses and require review. There is also a need to intensify Nigeria’s security standards in order to combat the increased threat of terrorism, the smuggling of small arms, light weapons and radioactive materials, child trafficking and cross-border crimes.

The need to set up appeal tribunals is urgent. In addition, companies that employ expatriates must be inspected on a regular basis to make sure that no foreigner is working in Nigeria illegally.

However, it is worth mentioning that, in spite of the above shortcomings, the government is working hard to achieve a safe environment for foreign investment.

In addition, in a fresh move to check the influx of illegal immigrants into the country, the government has taken steps to establish electronic surveillance posts at different locations; these are to be connected to the NISS to ensure the effective monitoring of the nation’s borders.