In continuation of our discussion on immigration considerations when seconding employees to key African jurisdictions, in this edition, we consider the Republic of Botswana (Botswana).
Botswana’s corporate immigration framework
The regulation of the employment of foreign nationals in Botswana is governed by the Botswana Immigration Act, 3 of 2011 (Immigration Act), read together with the Immigration Regulations (Regulations), published on 14 October 2011.
Which permit is required?
Residence and work permits are issued by the Immigrants Selection Board. Significantly, a foreign national issued with a work permit does not automatically qualify for a residence permit. As such, the foreign national must make two separate applications, one for a residence permit and another for a work permit. It is common for both applications to be submitted simultaneously.
As mentioned above, the Immigrants Selection Board is responsible for issuing residence and work permits. An application for both permits must be lodged with an authorised officer, in the prescribed form and accompanied by such fee as may be prescribed (discussed below). An authorised officer must then assess the application and endorse his or her recommendations on the application and transmit the application to the Immigrants Selection Board for consideration. The Immigrants Selection Board then determines whether to issue the permit.
Botswana recognises two categories of permits relevant to this alert, the work permit and the residence permit. There are no special permits for individuals who possess scarce skills. It bears mentioning though that individuals possessing scarce skills obtain more points in the visa evaluation process, discussed below.
The requirements for the work and residence permits are as follows:
|Work Permit||Residence Permit|
|Duration||Valid for up to 5 years||Valid for up to 5 years|
|Application||An individual applying for a work permit must provide
||An individual applying for a residence permit must provide
|Prescribed fee||P 1500.00||P 1500.00|
|Issued by||Department of Labour and Home Affairs||Department of Immigration and Citizenship|
Duration of permits
The duration for which a permit is issued is determined by the Immigrants Selection Board. The employee and the employer must make submissions to the Immigrants Selection Board in respect of the period of time that the permit should be issued for. After considering these submissions, the Immigrants Selection Board will determine the period of time that the permit will be issued for. Importantly, the maximum duration for a work permit is five years.
Registration with a professional body
The qualifications of an applicant may determine whether the applicant has to register with an appropriate professional body. Generally, professionals such as lawyers, accountants, doctors and teachers need to be registered with a professional body. Additionally, all applications for permits are subject to a security check. On average, the whole application process from application to issuance of the permit, takes about 3 months.
The Points Based System (PBS)
In 2012, the Government of Botswana introduced an objective PBS in evaluating work and residence permit applications. Furthermore, in 2013, the PBS pass mark for new work and residence permits was lowered from 75% to 60% in order to respond more effectively to employer needs.
The eligibility criteria is as follows:
|English / Setswana Language||10|
|Educational Qualifications||15 (maximum)|
|Degree or equivalent qualification||15|
|Diploma or equivalent qualification||10|
|Relevant Work Experience (years)||40 (maximum)|
|Percentage needed to apply||60% (72)|
Spouses and dependants
In the case of an application for a residence permit by a spouse or a child under the age of 18 years, or the aged parent or grandparent of a holder of a permit who the holder of a permit has undertaken to maintain, the Immigrants Selection Board does not employ the PBS highlighted above. As such, a less stringent approach is adopted to the issuing of these permits, however, it is important to note that the same requirements highlighted above apply to the issuing of these permits.
A non-citizen who has resided lawfully in Botswana for at least five years may apply for a permanent residence permit. Such permit is issued by the Minister of Labour and Home Affairs (Minister) where he or she is satisfied that a non-citizen has resided in Botswana for at least five years and such person:
- is of good character;
- has made significant contributions of benefit to Botswana;
- is of good standing in society; or
- has sufficient means to support him or herself.
The Minister is also empowered to issue a permanent residence permit subject to such conditions as he considers necessary. The prescribed fee for an application for a permanent residence permit is P 3000.00.
The Minister may cancel a permit if the holder of a permit:
- fails to take up residence in Botswana within six months of the date of issue of the permit;
- absents him or herself from Botswana for a continuous period of more than six months;
- his or her agent is convicted of an offence under the Immigration Act in connection with an application for the issue or renewal of a permit;
- is convicted of an offence under section 20(2) of the Immigration Act;
- violates the conditions of a permit issued in terms of the Immigration Act;
- having attained the age of 18 years old, is convicted of any other offence punishable with imprisonment and the court by which the person is convicted, or any court to which his or her case is brought by way of appeal against conviction or sentence, recommends that the permit be cancelled; or
- if the Minister is satisfied that the object for which the permit was issued or renewed has been completed and no longer exists, or that it is no longer in the interests of Botswana that the holder should have such a permit.
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.