By Oyetola Atoyebi, SAN

“Pursuant to Section 116 of the Nigeria Immigration Act 2015, the Minister of Interior through the Ministry of Interior is responsible for the administration and technical enforcement of the Nigeria Immigration Act and Immigration Regulations 2017 as it relates to the establishment of business in Nigeria by wholly foreign-owned or Joint Venture companies and the employment of expatriates.”

INTRODUCTION

Pursuant to Section 116 of the Nigeria Immigration Act 2015,[1] the Minister of Interior through the Ministry of Interior, is responsible for the administration and technical enforcement of the Nigeria Immigration Act and Immigration Regulations 2017, as it relates to the establishment of business in Nigeria by wholly foreign-owned or Joint Venture companies and the employment of expatriates. It should be noted that these responsibilities basically involve; a) granting of Business Permits and Expatriate Quotas Approval and b) monitoring of the utilization of quota positions by companies, and ensuring effective transfer of technology to Nigerian understudies. It is in tandem with these responsibilities that the Ministry of Interior released a Handbook on Expatriate Quota Administration on the 31st day of August, 2022.

AVAILABLE SERVICES

The services currently available range from granting Business Permits, amending Business Permits, granting Expatriate Quotas, granting renewal of Expatriate Quotas, granting additional Expatriate Quotas, re-designation of Expatriate Quotas, extension of tagged expatriate Quotas, among others.

Grant of Business Permit: On the authority of the Minister of Interior, a certificate is issued to a foreign-owned or Joint Venture Company with foreign participation to enable them operate legally. The certificate remains valid as long as it is not revoked.

Grant of Establishment/Expatriate Quota: This allows companies/ organizations to engage the services of expatriate personnel with skills and competencies in fields that are scarce and/or not available locally. This grant is for a period of three (3) years in the first instance, renewable biennially for two consecutive times within a lifespan of seven (7) years. With the exception of approvals for companies in the oil and gas industry, which will have their approval for an initial period of two years and renewable once within a life span of four years.

GENERAL RULES/REQUIREMENTS

Business permit is granted to only foreign-owned companies or Joint Venture companies with a minimum paid-up capital of #100,000,000. The value of their equipment or machinery could also form a portion of the paid-up capital to be invested in the country. Expatriate quota is granted to foreign, Joint Venture or indigenous companies registered as limited by shares, limited liability partnership, Business Name, Limited Partnership, Limited by Guarantee or Incorporated Trustees which have met the specified requirements. An Expatriate must possess a Bachelor’s Degree/HND or specific training certificate in the relevant profession. For each Expatriate Quota Position granted and on which an Expatriate is placed, two (2) Nigerian understudies with minimum qualifications of Bachelor Degree/HND or relevant training certificate must understudy that expatriate. The names, qualifications, National Identification Number or Tax Identification Number, phone numbers, e-mail addresses and training programme of such Nigerian understudies should be forwarded to the Ministry within 6 months of the approval. The Expatriates are required to present proof of registration with the relevant regulatory professional bodies within 6 months of arrival in Nigeria. Renewal of quotas granted shall be based on the submission of all the required documents. The grant of additional expatriate quota shall be subject to either expansion or diversification of business, acquisition of new machinery or fresh capital investment into the Company. Companies in the Oil and Gas Industry must obtain recommendations from the Nigerian Content Development and Monitoring Board (NCDMB) before the Ministry of Interior grants approval for Expatriate Quota. Companies in the aviation sector must obtain recommendations from the Ministry of Aviation (Nigerian Civil Aviation Authority – NCAA) before the Ministry of Interior grants approval for Expatriate Quota. The following professions are not eligible for the grant of Expatriate Quota except there is an exchange programme which Nigerians are participating in: Teaching positions from Nursery to Secondary except for highly specialized subjects. Artisan positions except with specialized skills. Legal profession. Only jobs on the Critical Skills list would be considered for Expatriate Quota upon proof that it cannot be filled by Nigerians. If a quota position expires without an application for renewal or relinquishment, the company’s eCITIBIZ account shall be disabled from processing any expatriate quota facility. OFFENCES AND SANCTIONS/ PENALTIES

Some of the sanctions and penalties related to offences in Expatriate Quota utilization are stipulated in Sections 56 and 57 of the Nigeria Immigration Act 2015 and in Part VII of the Immigration Regulations (Regulations 52(6), 52(7) and 53. They are as follows:

A corporate entity is liable to a fine of three million Naira for failure to renew its expatriate quota or render its expatriate monthly returns. The failure to engage Nigerian employees to understudy expatriate employees, renders the company/organisation liable to a fine of three million Naira for each month that a position is occupied by an expatriate without an understudy. The submission of forged information in the Monthly Expatriate Quota Returns, renders the author of the information liable on conviction to imprisonment for a term of three years, or a fine of two million Naira or both; and where a corporate body is found guilty in this offence, it is liable to a fine of five million Naira and the Court may issue an order to wind up the body. For offences against Section 68 of the Nigeria Oil and Gas Industry Content Development Act 2010, the penalty is as stated in the NOGICD Act. CONCLUSION

In my opinion, the revised Expatriate Quota Administration Handbook is a step in the right direction as it encapsulates all the administrative facets of Nigerian Immigration. However, I believe that more can be done to further stimulate progress in this area.

Key terms: Nigerian Immigration, Expatriate Quota, Immigration Handbook.

Mr Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of International Law Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Toheeb Adeagbo

Toheeb is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Immigration Law Practice

He can be reached at toheeb.adeagbo@omaplex.com.ng

[1] This Act repeals the Immigration Act, Cap. I1, LFN, 2004, and the Passport (Miscellaneous Provisions) Act, Cap. P1, LFN, 2004