BARRISTERS & SOLICITORS

                         IMMIGRATION LAW AND POLICIES IN NIGERIA
 

Nigerian immigration law is derived principally from statute, and policies. The central piece of legislation governing immigration law and practice in Nigeria is the Immigration Act of 2015, which is supported by the Immigration Regulations of 2017. The Immigration Regulations were issued as subsidiary legislation by the Minister of Interior pursuant to Section 112(1) of the 2015 Act and provides the legal framework for the effective implementation of the Act.

Additionally, in February 2020, a New Visa Policy (NVP), was formally launched by President Muhammadu Buhari, introducing a reformed visa regime. The NVP is intended to attract more foreign direct investment (FDI) into the country's economy to improve the Nigerian business environment and boost tourism without compromising national security.

The body saddled with the responsibility of administering immigration laws and policies is Nigerian Immigration Service (NIS) under the headship of the Comptroller General of Immigration.

Notable changes introduced by the New Visa Policy include the expansion of the categories of visas from 6 to 79 classes of visas, visa on arrival, and e- visa application. It provides for visa in almost every conceivable purpose for entry into the country.

The Visa on Arrival (VoA) channel is available at the Nigerian port of entry, (at the desk marked 'Visa on Arrival') for those whose visa application falls within the qualifying classes of visas; these include frequent business travelers, emergency relief workers and holders of passports of African Union (AU) countries. Once the application has been submitted at the port of entry, the applicant will be required to make an online payment through the NIS website and undergo biometric enrolment to be issued the entry visa.

E-visa application is an online process requiring intending visitors to apply online via the NIS website. Following successful consideration and processing of the application, the applicant will receive by email approval confirmation and an Electronic Travel Authorisation Letter (eTAL) within 48 hours of the application; the applicant is required to obtain this pre-approval before coming into Nigeria. Application by e-visa is available for specific purposes, including the transit visa, business visa, tourism visa, journalist visa and visas for staff of international non-governmental organisations (INGOs).

The submission of an application at the Nigerian diplomatic mission or embassy is an avenue available in respect of all classes of visas, including the categories of visa that qualify for Visa on Arrival and E-visa applications. To use this channel, application and payment is initially effected online, with the requisite supporting documents to be submitted at the embassy and, if necessary, the applicant will be required to attend an interview; if the application is approved, the visa will be issued. Applications for Nigerian visas requiring submission at Nigerian diplomatic missions can also be submitted at established visa application centres, which are available in some countries and are authorised to receive applications and submit these to Nigerian embassies on behalf of the visa applicant.

Section 18 of the 2015 Act stipulates that, unless the Minister of Interior or the Controller General of Immigration directs you otherwise, an immigration officer shall admit into Nigeria a person who:

1. has in their possession a valid passport or such other travel document as is approved by the Minister or CGI for admission into Nigeria; or

2. is in possession of a valid visa, residence or work permit, or any other permit, or other form of approval.

An individual who has the requisite documents for entry into Nigeria should, therefore, ordinarily be admitted into the country. Entry can, however, be denied to a foreign national by the immigration officer in the following circumstances: where the requisite visa or permit needed for entry or admission has not been validly obtained; where, on the advice of a medical inspector, it is undesirable for medical reasons to admit such a foreign national; or where the national seeking entry is classified as a prohibited immigrant. Entry can also be validly denied to those considered a risk to public health, public interest or national security and those who should not be admitted into Nigeria on any other grounds as may be prescribed from time to time by the Minister of Interior or Comptroller General of Immigration.

There are offences of non-compliance by individuals and corporations are set out under the 2015 Act and the Immigration Regulations, and stringent penalties – ranging from administrative fines to imprisonment and deportation – have been put in place to curb breaches of the law. Penalties include a fine of 5 million naira, as well as the potential winding up of a company, for an offending body corporate, a fine of 1 million naira or potential deportation as the penalty for non-compliance with provisions relating to entry for business purposes for individuals, and the assignment of criminal responsibility to airline operators and commercial carriers for facilitating an immigration offence.

The Act empowers immigration officers to arrest any immigrant found committing an offence or found to have committed an offence under the 2015 Act or the Immigration Regulations, and also to enter and search any premises in which the immigration officer reasonably believes an offence under the Act or Regulations is being or is about to be committed. Both of these powers are exercisable without a warrant and underline a determination by the authorities to consistently monitor immigrants and ensure compliance with immigration laws by foreign nationals.

With respect to immigration-related matters, the jurisdiction to hear and determine such proceedings resides with the Federal High Court (FHC), and the 2015 Act further provides for the establishment of a division under the FHC that is to be responsible for hearing all matters relating to immigration. There is also provision for an immigration case to be dealt with in priority to any other case, civil or criminal, where a person is charged with an offence the conviction for which, would result in deportation, this being a measure clearly designed to ensure that a person recommended for deportation is not remanded for an excessive period. Notwithstanding this provision, it should be noted that such a person can still be remanded in custody for a period of up to 90 days, further underscoring the importance and need for foreign nationals and their employers to remain fully compliant with the provisions of the 2015 Act at all times.

For parties wishing to bring an action against the NIS, cognisance should be taken of the need to first issue a pre-action notice before a civil action can be brought against the NIS; this requirement is in accordance with the provisions of Section 109(1) of the 2015 Act, which stipulate that 'no civil action shall be commenced against the Service or its authorised officers before the expiration of a period of 30 days after a written notice of intention to commence the suit shall have been served'.

As stated above, the NIS is designated under the 2015 Act as the principal body charged with responsibility for administering the Act, with the power to both sue and be sued. The responsibilities of the NIS are clearly stipulated under Section 2 of the 2015 Act and encompass the following:

1. control of persons entering or leaving Nigeria;

2. issuance of travel documents, including Nigerian passports, to bona fide Nigerians within and outside Nigeria;

3. issuance of residence permits to foreigners in Nigeria;

4. border surveillance and patrol;

5. enforcement of laws and regulations with which it is directly charged; and

6. performance of such paramilitary duties within or outside Nigeria as may be required of it under the authority of the 2015 Act or any other enactment.

The Ministry of Interior (the Ministry) formulates and implements policies related to border management and supervises the NIS. Its mandate is to foster and maintain internal security and citizenship integrity for the promotion of good governance. Despite structural changes over time, both in functions and nomenclature, the Ministry invariably continues to be involved in the immigration process, with the Minister of Interior being charged with responsibility for immigration, and assigned specific functions under the 2015 Act. At present, the Ministry is responsible for matters related to the granting of Nigerian citizenship and the granting of expatriate quotas, among other functions.

Other relevant authorities that indirectly have an impact on the application of immigration policy and procedure in Nigeria, albeit to varying degrees, include:

1. the Nigerian Investment Promotion Commission (NIPC), which was established in 1995 as a federal government agency created to promote, coordinate and monitor all investments in Nigeria, as well as to maintain liaison between investors and ministries, government departments and agencies, institutional investors and other authorities concerned with investment;

2. the Corporate Affairs Commission (CAC), which administers the provisions of the Companies and Allied Matters Act (CAMA) – the principal legislation that governs the incorporation and regulation of the companies in Nigeria. By virtue of the provisions of the CAMA and their applicability on matters relating to foreign participation in enterprises in Nigeria, the CAC, by default, has an impact on the administration of the 2015 Act and some of the provisions therein.

3. the Securities and Exchange Commission (SEC), which administers the provisions of the Investment and Securities Act 2007 and issues guidelines on the regulation of foreign investment in the Nigerian capital market. All foreign investors investing in securities of Nigerian companies – except those of private companies – are expected to register with SEC;

4. the Federal Inland Revenue Service, which is responsible for the collection of relevant corporate taxes as well as the individual state internal revenue services, which are responsible for the collection of personal income taxes of foreign employees working in Nigeria;

5. the Federal Ministry of Labour and Productivity (FMLP), which is responsible for promoting employment, regulating the labour market, overseeing labour relations and monitoring employment conditions. In 2004, an International Labour Migration Desk (ILMD) was established within the FMPL; the ILMD is responsible for ensuring the protection of employment and social rights of foreign migrant workers within the country, with a mandate – among other things – to establish a database on migrants within and outside Nigeria;

6. the National Population Commission (NPC) of Nigeria, which was established by the federal government through the National Population Act No. 23 of 1989. The 1989 Act established the NPC as an independent and autonomous body to conduct regular censuses. Part of the NPC's mandate is to compile, collate and publish migration and civil registration statistics; and

7. the National Planning Commission of Nigeria, which was established by Decree No. 12 of 1992, later amended in 1993, and the functions of which include dealing with matters relating to regional economic cooperation, including the Economic Community of West African States (ECOWAS).

8. the Nigerian Content Development and Monitoring Board (NCDMB), which was established under the Nigerian Oil and Gas Industry Content Development Act of 2010 (the NOGIC Act). Part of the responsibilities of the NCDMB, pursuant to Sections 31, 32 and 33 of the NOGIC Act, relates to the administration and management of applications for expatriate quotas, succession planning and the deployment of expatriates in the oil and gas industry.

Exemptions and favoured industries

Among those who enjoy exempted status in respect of the immigration rules and procedures applicable to non-Nigerians entering the country are those granted the right of free movement within ECOWAS; this right of free movement is accorded to nationals of ECOWAS Member States under the ECOWAS Protocol on the Free Movement of Persons, Residence and Establishment. More specifically, the provisions of the ECOWAS Protocol stipulate in Article 3(2) that:

A citizen of the Community visiting any Member State for a period not exceeding ninety (90) days shall enter the territory of that Member State through the official entry point free of visa requirements. Such citizen shall, however, be required to obtain permission for an extension of stay from the appropriate authority if after such entry that citizen has cause to stay for more than ninety (90) days.

This provision is also preserved in Section 37(13) of the 2015 Act, which confirms that nationals of ECOWAS Member States are exempt from requiring entry visas and are allowed to reside, work and undertake commercial and industrial activities within Nigeria. With respect to the right of residence and establishment of business, ECOWAS nationals are advised to procure a residence card from the NIS, which is valid for five years, and are also at liberty to procure an ECOWAS travel certificate, as an alternative or in addition to their country's passport, for the purpose of travel within the community. These provisions are also, to a certain extent, reflected in the Immigration Regulations, which stipulate the need for ECOWAS nationals to register with the NIS to be issued with valid residence cards.

The recently launched NVP formally recognizes citizens of countries that have entered into visa abolition agreements with Nigeria (currently citizens of Cameroon and Chad) as being permitted to travel to Nigeria without obtaining a visa for a maximum of 90 days; requisite permits or visas must, however, be obtained by these citizens where the purpose of entry is for employment or to establish a business.

Furthermore, under the NVP, visa-free entry (whereby entry into Nigeria is permitted without a visa, but only for single entry and for a maximum period of 90 days) is granted to the following persons:

1. holders of official travel documents from specific international organisations, namely the United Nations, the AU Commission, the ECOWAS Commission and the African Development Bank; and

2. holders of diplomatic or official passports from countries that have entered bilateral or multilateral visa waiver agreements with Nigeria on the principle of reciprocity such as Brazil, China, Cuba, Singapore, Venezuela and Turkey.

With respect to favoured or protected industries within the Nigerian economy, it is important to note the following sectors and the relevant laws that have an impact on immigration within these industries.

Companies operating in export processing zones

Companies engaged solely in export promotion activities and operating in export processing zones (also known as free zones), benefit from a more liberalised regime for employment of expatriates. Export processing zones are areas in which businesses are exempt from the normal legal regime applicable in Nigeria, particularly with regard to some aspects of immigration procedure and also customs duty and tax; the Nigerian Export Processing Zone Authority has been established as the body with the mandate to administer the free zones scheme, both as an operator and a regulator, while the Oil and Gas Export Free Zone (OGEFZ) is specifically managed by the OGEFZ Authority. The applicable laws in respect of these zones are the Nigeria Export Processing Zone Act (the NEPZ Act) and the Investment Procedures, Regulations and Operational Guidelines for Free Zones in Nigeria 2004 (the NEPZ Regulations), which were issued pursuant to Section 10(4) of the NEPZ Act.

The mining industry

For the purposes of attracting foreign investment to the Nigerian solid minerals sector, various incentives to prospective investors were included in the Minerals and Mining Act of 2007. Specifically, Section 25 of this Act provides that all operators in the mining industry shall be granted various benefits, including the automatic grant of an expatriate quota and residence permits for approved expatriate personnel of operators in this sector.

The oil and gas industry

Foreign investors seeking to set up businesses in the Nigerian oil and gas industry need to take account of the Nigerian Oil and Gas Industry Content Act 2010, which mandates indigenous participation in oil and gas operations. Specifically, Sections 3(2) and 106 of the 2010 Act stipulate that a company operating in this sector must be a Nigerian company, with not less than 51 per cent equity shares of the company being held by Nigerians.