NIS and an unenforceable expatriate quota

todayFebruary 24, 2022

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The Nigeria Immigration Service (NIS) circular earlier this year requiring companies to notify the NIS via letter when any expatriate employee under a valid quota position travelled out of Nigeria and upon the employee’s return does not have the capacity to check illegal immigration into the country, experts say.

The circular advised that, “pursuant to the new rules, companies are to submit notification letters to the NIS within one week of an expatriate employee departing Nigeria for any reason and within one week of their return to Nigeria.”

The circular further mandated that the letter will state the immigration details of the expatriate employee, the expected departure and arrival dates, and that the company would bear the full immigration responsibilities of the expatriate.

Meanwhile, Castro Ginikeme, an Abuja-based lawyer and a former adjunct law professor in the United States, worries that the policy does not have the capacity to check illegal immigration into the country, saying, “The nature of the requirement is targeted at western expatriate workers who are here legally. They are here because their companies want them here, not because they love being here.

“But it is completely silent on the overwhelming number of immigrants who are here illegally. Apparently, they are going to make some money here. Nigeria is the only country where you make money if you are leaving the country. It is targeted at countries from the West because they are the ones doing intra-country transfer. Our real problem is not those who come in legally and go through the process, rather our problem is those who come into the country illegally both for political and ethnic reasons and the NIS knows this.”

However, a senior immigration source at the headquarters of the NIS in Abuja told BusinessDay that the reasons for the new policy were to “monitor effectiveness of the implementation of the expatriate quota policy, and to ensure that the policy was not being abused as it had been in the past. We also want to check illegal migration into the country.”

While the policy might have been nobly intended, inadequate enforcement of past regulations and incapacity to enforce the new policy by the NIS leave a lot of room for fear.

An attorney and partner with one of Nigeria’s leading law firms admits that the “policy is not new. What is new is that the NIS is now requesting that these companies inform them when their expatriate employees go on holidays and short visits outside the country. In the past, it was only incumbent on the companies to inform the NIS of the final exit of their expatriate employees from the country by forwarding their departure tickets and such documentation to the NIS.”

She adds, “The regulations were already robust enough, but should have the capacity for enforcement. I struggle to see how this new policy would make the system more effective. I worry that the oversight could become more muscular with the added layers of bureaucracy inherent, that would encourage arbitrage.”

Nigeria’s government, keen to scale up transfer of specialised skills and knowledge to Nigerians, had over the years made provisions for the employment of highly skilled foreigners through the issuance of Expatriate Quota (EQ) approvals. Many Nigerians on the other hand have been suspicious of the government’s policy, viewing the presence of foreigners in varied sectors of the economy as nothing but unabridged and perfidious job theft from competent and qualified Nigerians.

While the Nigerian Investment Promotion Council (NIPC) says Nigeria is attracting an average of $2 billion of FDI annually, which is significantly lower than the $10 billion estimates needed to achieve the desired economic growth, independent tax and advisory firm, Andersen, notes that, “closely related to such foreign direct investment is the need for skilled manpower and specialised labour to ensure the profitability of these investments.

“Without doubting the capabilities of the local workforce in Nigeria, some of these investors require the services of foreign workforce or expatriates, especially in the initial phases of their business in Nigeria, due to the nature or technicality of such businesses. In these instances, the common practice, which is also enforced by the respective authorities, is to assign local employees to understudy any expatriate employed in any organisation for a period of time.

“In addition, businesses that employ expatriates have certain regulatory requirements, which must be complied with in order to avoid sanctions and penalties, which will ultimately hinder their business process.”

KPMG in a 2016 report observed that “the EQ platform has reportedly been subjected to various forms of abuse over the years. The most prevalent is the employment of unskilled foreigners to the detriment of qualified Nigerians. Many observers have noted that the unmitigated influx of unqualified expatriates, and their placement on EQ slots for which there are adequate local manpower resources, have contributed greatly to the rising unemployment figures in Nigeria.”

The report further noted that, “another major abuse of the EQ provision is the issue of ‘Quota Trafficking’. This usually occurs when an organisation utilises its approved quota slot in such a way that an expatriate personnel is assigned to a position that does not align to his internal role or job designation.

“An example is when a company employs an expatriate with a background in Accounting and places him or her on an EQ slot allocated to an Engineer. Quota trafficking also occurs when an expatriate is allocated an EQ position without the requisite academic qualifications as specified on the EQ approval letter issued by the Federal Ministry of Interior. There have also been reports of companies utilising occupied slots to employ more expatriates, and this will usually lead to quota over-placement.”

While the NIS says that the policy would check the abuse of the expatriate quota policy, the reality is that it is unlikely to do so. For years now, the NIS has been indifferent to the abuse of the EQ policy by foreign firms, especially major construction companies in the country.

One of the most persistent accusations that have been made for years against German construction firm, Julius Berger plc, is the charge that the company deliberately flouts the country’s EQ and local content regulations by obstinately recruiting fresh German graduates as well as European handymen including plumbers, tilers and electricians to supervise experienced Nigerian professionals many of whom have decades of proficiency.

Read also: Manufacturing investments to rebound as UK project kicks off in Nigeria

Sources within the company told BusinessDay that, on a constant basis, the management of Julius Berger preferred to import mainly German and other Europeans at between 15 and 30 thousand Euros a month to fill supervisory positions that many Nigerians who have worked with the company for decades could have easily filled at less cost.

According to a source, “these people are brought in only because Julius Berger does not want Nigerians to occupy any controlling role in the engineering area. They do this to perpetuate the legend that Nigerians are not capable of doing certain jobs and hence the need to keep giving out Nigerian jobs to their people.”

A senior management official with the Ministry of Labour and Employment who pleaded anonymity notes, “Julius Berger has been here since the early 1970s, is it that in all these years they have not deemed it fit to train and equip Nigerian workers to do the jobs they so love to bring in their people to do?”

She says Julius Berger was in clear breach of Nigerian labour regulations, which categorically states that no foreigner should be employed to do a job a Nigerian can do. She accuses the NIS of standing idly by and watching indolently while Julius Berger and other construction companies wantonly breached the country’s labour and immigration laws.

A senior official with the NIS, who spoke with our correspondent, decries the ‘incestuous’ relationship between Julius Berger and the immigration service. The relationship, according to him, was built and sustained on patronage and corruption. In the early stages of the relationship, he notes, the immigration service had tried to force the company to mellow its unabashed import of foreign workers but had failed woefully as according to him, “the next thing is you get a phone call from big men in government instructing you to approve whatever the company applies for. At the end of the day, we just stopped monitoring and regulating them as there was no useful basis for it.”

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