A new Immigration Act was signed into law on May 25, 2015 with immediate effect, replacing the outdated Immigration Act of 1963.
Most notably, the new Act, referred to as Immigration Bill 2010 (IB2010), introduces harsh penalties for non-compliance with the immigration law, and puts more responsibility on the shoulders of employers for ensuring compliance by employees. Companies are required to take full immigration responsibility and security for their foreign employees before the work and residence permits are approved. They are also held liable for failure to obtain and renew both work and residence permits for their foreign employees, subject to monetary fines.
Key offences and penalties
Some of the key offences and related penalties in the IB2010 are:
• Foreign nationals will be liable for a fine of up to NGN 2,000,000 (approximately USD $10,000), up to 1 year imprisonment and/or immediate deportation should they fail to apply for a residence permit within 3 months of arriving in Nigeria, renew a residence permit within 30 days of its expiration, or stay in the country on an expired Business Visa, Transit Visa, Temporary Work Permit, etc.
• Failure to renew the expatriate quota or file the expatriate monthly report to the Nigeria Immigration Service may result in a fine of NGN 3,000,000 (approximately USD $15,000) for the company, and a fine of NGN 1,000,000 (approximately USD $5,000) and/or imprisonment up to one year for the corporate representative in-charge (Director, Manager, Secretary, or someone acting in a similar capacity);
• If a company itself is convicted of an offence under the new act, this can generally result in a fine of NGN 2,000,000, as well as lead to further investigation. The IB2010 even allows for the court to order a permanent closure of the company, although it is believed that this extreme measure would only be applied to very serious offences and/or repeat offenders. In addition, the company official deemed responsible, either through negligence or willful act, may be personally fined for up to NGN 2,000,000 and/or may face up to 3 years of imprisonment.
Power of Arrest and Detention and Immigration Courts
Under the IB2010 new powers are conferred to immigration officers to detain a foreign national if there is reasonable cause to believe that the foreigner is in violation of immigration law. Additionally, both permanent and mobile immigration courts will be established at ports of entry, which will receive the power to rule on violations of the immigration law. These immigration courts will be able to detain an alleged offender for up to 21 days initially and up to 90 days in total, while awaiting the hearing of the case.
It should also be noted that under the new Immigration Bill approval needs to be obtained by a foreign employee from the Comptroller General of Immigration (CGI) before changing employment; failure to obtain such approval makes the employee subject to deportation.
The CGI is now also responsible for approving and issuing Temporary Work Permits.
ACTION ITEMS FOR EMPLOYERS
Pro-Link GLOBAL advises employers in Nigeria to carefully review their internal immigration policy to ensure compliance to the new Immigration Law, since non-compliance will not only be likely to result in high fines for the company, or even company closure in extreme cases, but may also put corporate representatives in jeopardy of being personally fined and being subject to imprisonment.
Additionally, foreign employees living in or simply visiting Nigeria should be informed of their personal risks when travelling and/or working without the valid and appropriate immigration documents. These risks include detention, high fines, deportation and even actual imprisonment up to 1 year.
It should also especially be noted that under this new law, both immigration officials and new immigration courts receive powers of detainment that they did not have before. At this time it is unknown if immigration officials and immigration courts as a policy will be using this power only in the case of severe offences or if it will become a frequently-used tool to enforce compliance. Either way, employers and foreign employees should be aware that this power is provided to individual immigration officials and therefore, regardless of the final official policy on this subject, there is always the possibility for this power to be used for minor offences as well. Staying in full compliance with the immigration law is therefore more important than ever.
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Caveat Lector | Warning to Reader
This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Pro-Link GLOBAL’s Knowledge Management team. Pro-Link GLOBAL worked with our PLG | KGNM NIGERIA Offices “Jon-An International LTD” and “Equita Law Firm” to provide you this update.
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