Are there regulatory traps for expatriates coming into Nigeria?
The oil and gas sector, which is the mainstay of the Nigerian economy, is dominated by multinational companies. The sector has contributed to the influx of foreign nationals over the years, who are required to provide special skills for the development of businesses. Wholly-owned Nigerian companies also require specialised skills from expatriates to support their investments. The skill sets provided by the expatriates are not usually available locally, and where they are, they are not adequate.
One major area of concern for expatriates coming to Nigeria is how to be compliant with regulatory requirements when in the country. In most cases, the company bringing in the expatriates may not understand their responsibilities and the potential risk of employing such expatriates.
In recent times, there have been several state tax investigations giving rise to humongous additional tax liabilities due to improper alignment of visa types with the required tax treatment. It is therefore important to educate the employers, especially multinationals and local companies, with large population of expatriates, on the regulatory requirements for employing and maintaining expatriates in Nigeria. This would ensure that the additional costs arising from non-compliance with applicable legislation is avoided. As they say, “ignorance of the law is not an excuse”.
As a company wishing to bring in expatriates into Nigeria, it is important to have basic knowledge of what is expected and the steps that should be taken to stay compliant with the regulatory requirements throughout the expatriate’s employment period in-country. This should cover immigration requirements from planning, to employing an expatriate until the end of his/her assignment in-country.
The first question to be answered by any company wishing to employ an expatriate in Nigeria is “does the law permit the employment of expatriates?” Before any Nigerian company can employ an expatriate to carry out a duty of employment in Nigeria, it must obtain an Expatriate Quota (EQ) approval from the Federal Ministry of Interior (FMI). The EQ sets out the approved positions that can be occupied by expatriates in the company. After obtaining the EQ, the company may proceed with the process of employing expatriates; albeit, it must be noted that the expatriate’s qualifications and role should be in line with the approved position in the EQ.
Further, non-Nigerian nationals wishing to visit Nigeria irrespective of the purpose of the visit are required to obtain an entry visa, except nationals of ECOWAS countries who do not require visa to visit ECOWAS member countries. There are various visa types depending on the purpose and duration of the visit to Nigeria. Each of the visa types has different obligations and assumptions attached to it.
The following are the visa types that may be obtained by expatriates coming to Nigeria and the applicable immigration requirements:
- Business visa: this is used by expatriates whose purpose of visit to Nigeria is to attend conferences, meetings and activities of similar nature. Holders of business visa are not required to carry out any form of work activities in Nigeria. Business visa can be obtained on arrival in Nigeria and subject to approval by the Comptroller-General (CG) of Nigeria Immigration Service (NIS). The pre-approval for visa on arrival can be processed within 48 hours. Business visa is usually issued for a period of 30 to 90 days.
- Temporary work permit: this is a single entry visa usually for a three (3) month term and renewable for further three (3) months. It is suitable for expatriates on short-term projects such as maintenance, installation, etc. of about three (3) to six (6) months. The employer is required to file quarterly returns of expatriates with the NIS.
- Subject to regularisation (STR) visa: expatriates taking long-term employment in Nigeria are required to apply and obtain STR visa. Holders of STR visa are usually placed on the employer’s EQ and considered to be on full-time employment with the company. STR visa is given for an initial period of 90 days, during which an application must be made to the Comptroller-General of the NIS, for regularisation of stay. Upon regularisation of stay of the expatriates, he/she is issued a Combined Expatriate Residence Permit and Alien Card (CERPAC), otherwise referred to as “Green Card”. The employer is required to file monthly returns with NIS for holders of this class of visa which is an evidence of their continued presence in the country. Upon disengagement from the company’s employment, a deletion return will be filed with NIS to release them from the quota position.
Failure of any company or expatriate to comply with the applicable legislation with respect to employment and immigration in Nigeria could result to an imposition of fines and penalties. It is therefore important to ensure compliance with the terms of the visa at all time, as the purpose of the visit may change over time. Where there is a change in the purpose of visit, the NIS should be approached by the company and/or expatriate as soon as possible for a change in visa terms as may be applicable.
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