The Nigerian Immigration Act 2015 (the Act) is widely acclaimed as the most effective Immigration legislation since Nigeria’s independence and a breath of fresh air in the country’s quest to standardize its immigration practices in sync with international best practices. In addition to facilitating foreign direct investments, the Act seeks to protect national security and wellbeing of the citizenry. Indeed, Immigration and its control, world-over, has always played a central role in national development. Aside from contributing to the inflow of requisite skills and expertise required to drive the nation’s economy, Nigerian immigration policies are built on the imperative that it is the responsibility of Government to protect and defend its citizenry against the unsavory effects of unwholesome practices that may be occasioned by a lax immigration regulation.
An important area on which the Immigration Act places high premium is the facilitation of the availability of requisite skills and expertise required to galvanize the Nigerian economy by ensuring easy an affordable access to foreign expertise wherever and whenever required in Nigeria. Thus, aside from ensuring the security of the nation and the wellbeing of its citizenry, the Act seeks to assure employment protection from external forces which might jeopardize the ease of access to decent employment by qualified Nigerians.
One of the facilities put in place by the Government to ensure the availability of skilled manpower is the Combined Expatriate Residence Permit and Aliens Card (CERPAC) as cumulatively provided under Sections 36(1)(a), 36(2) and Section 37(1) of the Act. CERPAC is both a residency and a work permit that allows the holder to live and work in Nigeria on a permanent basis, subject to the conditions in respect of which it is issued. The validity period of the CERPAC however depends on the validity of the Expatriate Quota Certificate of the employing Company. An important condition for the grant of Expatriate Quota in Nigeria is the requirement that two Nigerian Understudies shall be employed for each expatriate employed to a specific role.
Section 37(8) of The Act also provides for the issuance of Temporary Work Permits (TWP) by endorsement on any travel document or otherwise as the Comptroller General may direct. TWP is a single-entry work visa which applies to Expatriates invited into the Nigeria to provide short-term services. The TWP allows such expatriates to come into Nigeria to provide specific services on a short-term basis and is usually issued for an initial period of 2 months (depending on the discretion of the Comptroller General) but may be extended for another month depending on the discretion of the Comptroller General of Immigration. The services eligible for the grant of a Temporary Work Permit include – erection / after-sales installation work, feasibility studies, erection /installation work, repairs of machinery/equipment, research work and other relevant assignments, provision of short-term engineering work etc.
Expatriates on TWP are ordinarily exempted from the payment of Personal Income Tax. However, they will be liable to pay taxes in Nigerian if they spend an aggregate of 183 days in a calendar year in Nigeria, including any period of annual leave and temporary absence. There is also no express requirement for expatriates on TWP to be under-studied by qualified Nigerians. Thus, whilst the issuance of TWP generally forecloses the payment of relevant PAYE taxes, the gains derivable from the training of qualified Nigerians on the skill-set of the expatriate on TWP is also denied. It is however ironic to note that whilst the issuance of TWP is intended to be beneficial to national development, it is the most abused immigration facility.
A glaring abuse of the TWP is the grant of stay to the holders beyond the maximum and cumulative period of 90 days. It is evident from the letters and wordings of both the Immigration Act and the Immigration Regulations issued pursuant to the Act that the objective of the TWP is to provide services on a short-term or temporary basis, as against having expatriates live and work in Nigerian on the long-term. Thus, TWPs are intended to ensure availability of manpower to satisfy short-term needs.
It is therefore disturbing and against the intendment of the framers of both the Immigration Act and the Immigration Regulation to approve the extension of Temporary Work Permits before the statutory period of 90 days. It is pertinent to note that the Immigration Regulations 2017 prescribe a penalty after conviction of 3 years imprisonment term or a fine of five hundred thousand (circa $1,500) for failure to renew the TWP, whilst enjoying the benefits only those with valid TWP should enjoy. The imposition of a fine for overstaying without any further sanction would appear to be a subtle encouragement as the erring expatriates readily pay the seemingly insignificant fines and move on.
Extending the permit beyond the three months period undermines the very essence of the facility one of which is to ensure the security of employment of Nigerians. Data from the National Bureau of Statics for Q3 2017 puts the general un-employment rate at 18.8%, under-employment at 21.2% and youth un/underemployment at 52.65%. These indeed are mindboggling figures and on their own, call for national and concerted action.
Another area of abuse is the qualification of expatriates to whom the TWP facility is granted. It is unclear how the immigration authorities assess the qualification of the applicants for a TWP to ascertain that they possess the requisite skill-set for the services they intend to provide. It is advised that the grant of TWP to regular technicians and immigrants who possess almost nil academic qualifications and who end up overstaying the approved period in Nigeria should be discouraged, particularly when the underlining services could be easily provided by qualified Nigerians.
Also, worrisome is the fact that there is yet to be a complete synergy between the Nigerian Immigration Service and the various State Inland Revenue Services, such that relevant data on immigrants who should ordinarily be brought into the tax net would be available to the Revenue authorities. Thus, whilst it is relatively easy to bring holders of CERPAC under the tax net, the position with immigrants on TWP is quite difficult. This stems from the lack of reliable data on immigrants on TWP and their exact location at any point in time. The Immigration Regulations require registered Immigrants to notify the State Registry within seven (7) days, if they intend to change residence from one State to another, and before leaving their places of residence for any period exceeding seven days. Such expatriates are also expected to report to the Immigration Officer in the new State of residence within seven (7) days of arrival and submit their international passports and residence permits for necessary registration. An appropriate database and enforcement apparatus would facilitate the easy tracking of immigrants on TWP who remain in Nigerian for upwards of 183 days and would ensure that appropriate taxes are levied and collected on the ground of their being resident in Nigeria for more than 183 days. In the absence of such a database, the Federal Government and indeed the respective host States would continue to lose revenue required for developmental activities.
It is important to note that amongst the numerous adverse effects of having expatriates overstay their Visa is the loss of skilled Nigerians to other jurisdictions as able bodied and qualified youths are forced to seek employment opportunities outside the country. There is also no gainsaying that where migrants overstay their visa, immense burden is placed on the welfare and social security system which is currently under pressure.
There is no doubt that the Nigerian Immigration Service has an important role to play in stemming the ugly tide of abuse of Temporary Work Permits by immigrants and corporate organizations. Apart from bringing the full brunt of the law to bear on erring immigrants and organizations, the Immigration Service, as in other jurisdictions, should not hesitate to deport erring immigrants and ensure that strict sanctions are imposed on companies who provide the platform for the violation of extant rules on the grant of TWP. Beyond the above, effective systems should be put in place by the Nigerian Immigration service for effective monitoring of TWP holders from arrival till they leave the country. Effective synergies should also be formed between the Nigerian Immigration Service and the State Inland Revenue Services to ensure that appropriate taxes due from expatriates who overstay their visa validity periods in Nigeria are remitted before such expatriates are deported from Nigeria. These steps will go a long way in stemming the abuse of the TWP regime and enable government live up to its responsibility of protecting the citizenry from the unsavory effects of non-compliance with immigration rules.
Ozor Chinedu is the Head Immigration and Legal Advisory Services at DCSL Corporate Services Limited. Kindly forward comments and reactions email@example.com or +2348055402929, +2348055371550