What are the main work and business permit categories used by companies to transfer skilled staff?
The main work and business permits are a special pass and a class D work permit.Procedures
What are the procedures for obtaining these permissions? At what stage can work begin?Special pass
An applicant is required to complete an application in the prescribed form. The employer should then prepare a letter to sponsor the application and attach it to the form. Two passport photos, the potential employee’s curriculum vitae and copies of academic and professional certificates should be attached to the application. The employer is also required to pay the requisite government fee upon approval. The law provides that a foreign national entering Kenya for the purpose of employment for a period not exceeding three months can acquire the special pass at the port of entry. However, this has not been implemented. The foreign national is allowed to begin working after the special pass has been issued.Class D work permit
An applicant is required to complete an application in the prescribed form. The employer should then prepare a letter to sponsor the application and attach it to the form. Two passport photos, the potential employee’s curriculum vitae, copies of academic and professional certificates and the Employment Report should be attached to the application. The employer is also required to identify a suitable Kenyan citizen to train under the foreign national for the purpose of passing on skills. Details of the Kenyan citizen identified should be provided (ie, academic and professional certificates and an identification document). A non-refundable processing fee of 10,000 Kenya shillings is paid at the point of lodging the application. When the application is approved, the employer is required to furnish the government with a financial security bond of 100,000 Kenya shillings. This may be in the form of a bank or insurance guarantee. The employer is also required to pay the requisite government fee. For applications to renew a work permit, a new requirement has been added: the sponsoring company has to attach a tax compliance certificate, in addition to the other requirements.Period of stay
What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?
The maximum period of stay granted for a special pass is six months. There is no minimum period of stay prescribed but, administratively, special passes are issued for a minimum period of one month. The maximum period for a class D permit is determined by the Work Permits Determination Committee, but a permit cannot be issued and renewed for a period exceeding five years. In practice, a work permit cannot be issued for a period of less than one year and they are usually issued for an initial period of one to two years, with the possibility of renewal.Processing time
How long does it typically take to process the main categories?
A special pass takes between three and four weeks to process. A class D work permit takes about four months. The period may be longer for some nationalities that are subject to stricter security clearance. Once a work permit application is approved, paid and issued, the assignee has 90 days to enter Kenya and have the work permit endorsed in his or her passport.Staff benefits
Is it necessary to obtain any benefits or facilities for staff to secure a work permit?
It is not necessary to obtain any benefits or facilities for staff before securing a work permit.Assessment criteria
Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?
The Immigration Regulations do follow some criteria, such as regarding:
- the reputation of the sponsoring company or employer;
- the skill set of the foreign national;
- whether the role has a regional remit to it;
- the position and qualification of the Kenyan understudy; and
- concrete evidence to show that the skills are not locally available.
However, there is flexibility and the success of any immigration application is sometimes dependent on the discretion of the Work Permits Determination Committee.High net worth individuals and investors
Is there a special route for high net worth individuals or investors?
High net worth individuals may lodge an application for a class G permit, which is issued for a specific trade (investors), business or consultancy. The minimum threshold for investing is set at US$100,000, and applicants must additionally obtain licences from the relevant regulators. Like any other permit, the issuance of a class G work permit is subject to whether the issuance of such a permit will be to the benefit of Kenyans.
Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?
There is no established special route for high net worth individuals. As mentioned in question 16, high net worth individuals may lodge an application for a class G permit and these are processed on merit.Highly skilled individuals
Is there a special route for highly skilled individuals?
There is no special route for highly skilled individuals.Ancestry and descent
Is there a special route for foreign nationals based on ancestry or descent?
There is no special route for foreigners based on their ancestry or descent. Every application is accorded equal opportunity and the considerations for approval will include experience, nature of the organisation and the availability or unavailability of skill sets.Minimum salary
Is there a minimum salary requirement for the main categories for company transfers?
There are no minimum salary requirements for the main categories for company transfers.Resident labour market test
Is there a quota system or resident labour market test?
An employer is required to show the steps it has taken to employ a Kenyan citizen before engaging a non-citizen. If the employer has advertised the position, it is required to attach a copy of the advertisement to the application. The employer is also required to explain the reason behind engaging a non-citizen for the position rather than a local citizen. Even where these reasons justify the hiring of a foreign national, the company must develop a programme that ensures phaseout of the foreign national through transfer of skills. The employer is also required to submit an Employment Report (see question 4).Shortage occupations
Is there a special route for shortage occupations?
Yes. Where skills are not locally available and the need for that job is manifest, immigration officials will look at that case with due consideration.Other eligibility requirements
Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?
None is prescribed. The employer is only required to justify the need for the non-citizen. If the non-citizen has the requisite qualifications and the skills are not readily available locally, increasingly there is a requirement that the application for a work permit must be recommended by the regulatory body that oversees the particular industry.Third-party contractors
What is the process for third-party contractors to obtain work permission?
Class D work permits are intended for foreign national employees who are working at a local employer’s premises. The permits are employer-specific and cannot be extended to other employers. Where third-party contractors do not have a registered entity in Kenya, in practice they use the main contractor as the sponsoring employer for purposes of work permit applications.Recognition of foreign qualifications
Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?
Skills and qualifications form a key basis when building a case for the issue of a class D work permit (for inbound foreign nationals). There are no equivalency assessments of recognition of skills and qualifications.