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IMPACT – LOW
What is the change? Three East African countries have approved a visa-free region for foreign residents of any one of the countries.
What does the change mean? Foreign nationals with a valid work permit or resident permit issued by Kenya, Rwanda or Uganda are now allowed to travel among the three countries without having to apply for a visa or pay government visa fees.
Background: The visa-free region is another initiative to integrate the three Coalition of the Willing (CoW) countries. Since its creation in 2013, the CoW has taken various steps to ease the movement of goods and people. Last year, the CoW launched an East African Tourist visa allowing foreign travelers to visit the region on a single visa. Uganda also abolished work permit fees for Kenyans and Rwandans.
Now, all foreign residents holding a valid foreigner certificate, work permit or resident permit in one of the CoW countries will be allowed to travel among all three countries without purchasing a visa. Upon arrival in the other two countries, they will have their passports stamped with an entry visa. Foreigners who are not residents may purchase the East African Tourist visa for US$100, valid for up to three months.
BAL Analysis: While this move is primarily aimed at boosting tourism, it will also reduce the barriers and cost of business travel among the three East African countries.
This alert has been provided by BAL Global Practice group and our network provider located in Kenya. For additional information please contact your BAL attorney.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – MEDIUM
What is the change? Kenya has passed a security law that bars foreign employees from entering the country without an approved work permit.
What does the change mean? Foreign employees are now required to apply for a work permit and await approval by the Department of Immigration Services before entering Kenya. All foreign nationals staying for more than three months must also comply with new registration requirements.
Background: The Security Laws (Amendment) Act took effect Dec. 22, 2014.
The main change for corporate expatriate employees is that they must apply and obtain approved work authorization before entering Kenya. Once an application is approved in-country, a foreign employee may get a visitor or business visa at the airport upon entry. While the law explicitly covers work permits, it is expected to also apply to other types of passes such as special passes, student passes, intern passes, dependent passes and researcher passes.
The law also imposes new registration and tracking of foreign nationals. All foreign nationals over 18 staying in Kenya for a continuous period of at least three months must register for a foreigner’s certificate with the Department of Immigration Services and notify authorities of travel or address changes. Businesses that provide accommodations to foreign nationals must keep track of their guests or tenants and submit written reports weekly to the Department of Immigration.
Another provision restructures the committee that approves work permits. This is a very positive development that should reduce chronic processing delays. The law gives the Cabinet Secretary sole power to appoint the work permit committee, providing stability to its composition. Previously, committee members were selected by the director of the Department of Immigration, and the reshuffling that occurred with each change of director often suspended processing for several weeks.
BAL Analysis: The law prevents foreign nationals from entering on a business or visitor visa and working before their work authorization is approved or remaining idle while an application is pending.
This alert has been provided by the BAL Global Practice group and our network provider located in Kenya. For additional information, please contact your BAL attorney.
What is the change? Kenya’s Department of Immigration Services has released a checklist of documents now required when applying for entry permits.
What does the change mean? The checklist sets out all the requirements, including those of an understudy, with options to enter “yes” or ”no” for each. Class D work permits require the name, contact information and academic records of a Kenyan understudy.
Background: The Department of Immigration Services has published a list of documents that must accompany each type of work permit. Notably, according to the list, Class D work permits – the category for foreign workers employed by a specific employer and sponsored by a Kenyan entity – now require that applicants submit the name of a Kenyan understudy and certified copies of his or her academic certificates and full contact details, including address, email and mobile phone number. The Class D permit already requires that the local Kenyan sponsor prove that it was not able to recruit a Kenyan worker for the position the foreign worker is seeking to fill. The new documentary requirement is consistent with a movement toward localizing the labor force and training Kenyan workers for jobs held by foreign nationals. This requirement has been in existence, but is now being enforced.
BAL Analysis: This represents a tightening of requirements, and employers and foreign nationals should anticipate that applications that lack any of the information on the checklist may be rejected. Identifying a Kenyan understudy for Class D permits is highly recommended and will require planning if required in advance of submission of the application.
What is the change? Kenya’s Department of Immigration Services has issued a memo reminding officers to strictly enforce the six-month limit on Visitor’s Passes.
What does the change mean? Foreign nationals holding a Visitor’s Pass must leave the country before six months elapses to avoid being arrested and prosecuted for unlawful presence.
Background: According to the memo, many foreign nationals are overstaying their passes. “All manner of excuses are given such as waiting for the approval of a work permit or other residence documents,” DIS said.
Visitor’s Passes are issued up to a maximum of six months and should not be extended.
“An expired Visitor’s Pass renders the foreign national unlawfully present in the country” in violation of the Kenya Citizenship and Immigration Regulation 2012,31(4), according to the memo. “Those contravening the Act should be arrested and prosecuted,” DIS said.
BAL Analysis: This is not a rule change, but enforcement of existing law. Foreign nationals should be aware that extensions beyond six months will not be granted in-country. Any holder of a Visitor’s Pass is advised to leave the country before the end of the six months. Once the foreign national’s work permit or other type of pass (such as Special Pass, Dependent’s Pass, Internship Pass, Researcher’s Pass or Student’s Pass) is issued, a visa can be purchased at the point of entry to allow the foreign national to enter for purposes of obtaining endorsement of the new permit or pass.
What is the change? A probe by the new Immigration Department director into suspected corruption in work permit issuance has caused staff on the work permit approval committee to slow down in protest of perceived interference.
What does the change mean? Processing of work permits is experiencing delays.
Background: Major-General Gordon Kihalwanga, a retired senior military official, was appointed Director of Immigration in August and initiated measures to combat alleged kickbacks in the issuance of work permits to foreign workers. The immigration committee has slowed its review of work permits in protest of the director’s allegations of corruption. The slowdown exacerbates delays caused by the recent closing of several immigration offices and reduction in services.
BAL Analysis: Companies should factor delays into their timelines.
What is the change? Amid security concerns, Kenya’s Department of Immigration Services has imposed a new process of “further vetting” on all visa and work permit applications.
What does the change mean? The extra steps, which include verification of background and security clearances and other checks, will add an estimated one to two weeks to processing times.
Background: Kenya is facing growing insecurity following a series of attacks by al-Shabab militants from Somalia, including the recent mass shooting of fans watching a World Cup match.
Effective immediately, the Department of Immigration Services has imposed “further vetting” of all applications by nationals of all countries. In the past, this process applied only to nationals of some countries.
“Further vetting” involves three steps:
BAL Analysis: The expansion of “further vetting” to all applications and all foreign nationals will mean longer processing timelines for all applicants.
What is the change? Kenya’s Information Technology Department has set up a special desk at the Ministry of Interior to help shepherd work permit applications through the process.
What does the change mean? The internal move is intended to help improve efficiency in work permit processing for foreign technology sector workers.
Background: This does not change the application process; work permit applications for foreign tech workers are still filed at the Department of Immigration Services (DIS). Employers should also send a copy of the application together with the official filing receipt and supporting documentation to the Ministry of Interior. This approach is appropriate in certain cases based on business needs and mainly for companies in the information and communication and technology (ICT) sector that require their expats to get into the country as soon as possible. While the DIS retains ultimate authority over adjudication of the work permit application, the Ministry can have a positive influence on an application.
BAL Analysis: The extra emphasis on helping foreign technology workers obtain work permits will benefit employers in that sector, especially when an application has stalled or has encountered a hitch in the normal process or where an employee is needed urgently.
IMPACT – HIGH
What is the change? Pursuant to the Kenya Citizenship and Immigration Regulations, the Department of Immigration Services, or DIS, is now issuing passes for foreign national researchers and interns who are performing academic research or participating in an academic internship.
What does the change mean? Foreign researchers and interns may now apply for the new passes.
Background: The DIS announced two new types of work passes for researchers and interns.
BAL Analysis: The new passes will give companies more flexibility in hiring and assigning foreign researchers and interns to Kenya.
What is the new enforcement measure? The Department of Immigration Service, or DIS, has begun stricter enforcement of a localization process for companies employing foreign workers.
What does it mean? Businesses will have to go to greater lengths to justify foreign assignments and should now create programs to transition skills to local workers.
Background: Among several changes at the Kenyan DIS, foreign work permit applications are undergoing stricter vetting to protect local workers.
We reported the extra scrutiny by the Kenyanization Office of DIS in November.
That process, now in full effect, is lengthening work permit processing by two to three weeks. The Kenyanization Office must be satisfied that the position requires skills that cannot be filled locally, that the foreign employee is qualified and that the employer has followed the recommended 1:3 ratio of foreign workers to Kenyans.
BAL Analysis: The extra localization efforts and scrutiny of foreign assignments requires that companies put a program in place to meet stricter standards for each foreign employee and train Kenyans to transfer skills locally as soon as possible.
What is the change? The Kenyan Department of Immigration Services is conducting sting operations nationwide in search of employees and business travelers who are in violation of immigration laws.
What does the change mean? Employers and foreign workers must be in compliance with work authorization and work permit rules. Business travelers must not exceed the scope of the activities allowed on business visas. Foreign nationals risk arrest and confiscation of their passports.
Implementation timeframe: Immediate. Visas/permits affected: Work permits, special passes, business visas. Who is affected: Foreign nationals in the above categories. Impact on processing times: None. Business impact: None. Next steps: Employers and foreign nationals are advised to have their documentation available for inspection.
Background: In a countrywide sting campaign, the Department of Immigration Services (DIS) is targeting all entities that employ foreign workers. In particular, it is rooting out those who are working without authorization in the form of a work permit or special pass, those whose authorization has expired, and visitors who are performing work activities in violation of a visitor/tourist or business visa.
The DIS has reportedly confiscated passports from a large number of foreigners. Several arrests have also been made.
BAL Analysis: Employers and their foreign employees should have documentation available for inspection. Business travelers are reminded that a business visa does not permit work activities, and that they must have a copy of an invitation letter issued by a company for suitable activities, such as visiting a worksite or attending a meeting or conference.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL representative.