In this edition we consider Kenya in the continuing of our discussion on immigration considerations in the secondment of employees to key African jurisdictions.
Kenya’s immigration framework
The Kenya Citizenship and Immigration Act, 2011 (Act) and the Kenya Citizenship and Immigration Regulations, 2012 (Regulations) regulate, inter alia, the employment of foreign nationals in Kenya.
In order to engage in employment in Kenya, foreign nationals are required to obtain work permits which are issued by the Department of Immigration Services. A foreign national is considered to be any person who is not a citizen of Kenya.
Which permit is required?
There are thirteen classes of permits in total. For the purposes of seconding employees to Kenya, only Class C, Class D and Class G permits are relevant. We deal briefly with the requirements for these permits below.
|Class C||Class D||Class G|
|Definition of Category||Issued to persons who intend to practice a prescribed profession in Kenya.||Issued to a person who is offered specific employment by a specific employer who is qualified to undertake that employment.||Issued to investors in a specific trade, business or consultancy.|
|Duration||Valid for 2 years.|
|Prescribed Fee||Processing fee: Kshs.10 000 (approximately R 1, 419)||Processing fee: Kshs.10 000 (approximately R 1, 419)||Processing fee: Kshs.10 000 (approximately R 1, 419)|
|Issuance fee: Kshs.100 000 (approximately R 14, 198), once off.||Issuance fee: Kshs.200 000 (approximately R 28, 396), once off.||Kshs.100 000 (approximately R 14, 198) per annum.|
A person applying for a Class C permit must:
A person applying for a Class D permit must provide:
A person applying for a Class G permit must provide:
In addition to the above, a person must provide the following:
Short Term Work/Business Stay: Special pass requirements
The purpose of a special pass is to cater for persons who intend remaining in Kenya for work or business purposes for a short period of time. It is issued to a person who intends to engage in any form of employment (whether paid or unpaid) or in any other income generating activity.
In order to obtain a special pass, a person must:
- complete the required application form;
- submit two copies of their national passport;
- submit two passport size photographs;
- submit a forwarding letter from the institution;
- obtain clearance from the necessary regulatory body; and
- must make payment of the prescribed fee of Kshs. 15 000 (R 2 135).
The special pass is valid for a period not exceeding three months.
Spouses and Dependents
A person who has already been issued with a permit may apply, on behalf of his or her dependent, for a dependent's pass. A dependent's pass will entitle the dependent to enter and remain in Kenya within the period specified in the pass. A dependents pass is issued by an immigration officer who must be satisfied that:
- the person, on whose behalf the application is made, depends on the person making the application for his or her maintenance;
- the dependent is a spouse or child of the applicant or is by reason of age, disability or any incapacity unable to maintain himself adequately or for some other reason relies upon the applicant for his or her maintenance; and
- the applicant has an income sufficient to enable him or her to maintain and continue to maintain.
A person (and his or her dependents) who has held a work permit for at least seven years may apply for permanent residency in Kenya provided that they have been continuously resident in the country for three years immediately preceding the permanent residence application. Permanent residency will be granted to such persons if various requirements are satisfied. Practical Considerations In addition to obtaining immigration approval for the employee's assignment, employers should ensure that the requisite employment and secondment agreements are in place. Where there will be an employment agreement in existence in both the home country and in the foreign country, the employer should be careful to avoid conflict between the two agreements. Thought should also be given to the action plan should either one of the employment agreements be terminated, for whatever reason.