General framework

Legislation

What primary and secondary legislation governs immigration in your jurisdiction?

Immigration law draws primarily from the Kenya Constitution; other legislation includes:

  • the Kenya Citizenship and Immigration Act 2011;
  • the Kenya Citizens and Foreign Nationals Management Service Act 2011;
  • the Kenya Citizenship and Immigration Regulations 2012 (the Immigration Regulations);
  • the Non-Governmental Organizations Coordination Act 1990;
  • the Refugee Act 2006;
  • the Counter Trafficking in Persons Act 2010;
  • the Penal Code (revised 2009);
  • the Evidence Act (revised 2014);
  • the Criminal Procedure Code (revised 2012);
  • the Extradition Act (revised 2012); and
  • the Privileges and Immunities Act (revised 2012).
International agreements

Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?

The East African Community (EAC) Common Market Protocol allows free movement of goods and services within the EAC area. There are efforts to support this endeavour, and immigration reforms have helped actualise this agreement to some degree (eg, EAC citizens with machine-readable identification may use such identity documents as travel documents).

Regulatory authorities

Which government authorities regulate immigration and what is the extent of their enforcement powers? Can the decisions of these authorities be appealed?

The Department of Immigration is the custodian and implementer of immigration laws. In some sections of the law, the Kenya police can arrest a person committing a cognisable offence, which would include an immigration offence.

Immigration officials have powers to arrest and prosecute for offences committed under the Citizenship and Immigration Act. In terms of arrest, the officials operate under the Criminal Procedure Code, which then allows officers to effect arrests. The law spells out the duties of immigration officials, which include:

  • boarding or entering vessels or premises, and carrying out searches of such areas;
  • summoning both Kenyans and foreign nationals;
  • arresting and searching persons;
  • establishing holding facilities;
  • removing immigration offenders; and
  • giving instant penalties for persons who have overstayed their authorised time in Kenya.

Other powers are enforced through the obligations placed on various institutions, including accommodation facilities, learning institutions and vessels, as well as on employers. The rules oblige such institutions, vessels and employers to ensure compliance with the law, and failure to comply is a crime.

There is an appeal mechanism in law. The Kenya Citizens and Foreign Nationals Management Service Act provides for an immigration tribunal that listens to contestations arising from immigration decisions. The tribunal has not officially been appointed; however, the law also provides for procedures for appealing decisions of the Department of Immigration, in the form of writing to the cabinet secretary in charge of immigration. He or she will make a decision on the matter raised. If the applicant is unhappy with the cabinet secretary’s decision, the law allows him or her to file the matter with the High Court of Kenya.

Government policy

In broad terms what is your government’s policy towards business immigration?

Kenya remains a strategic location and entry point for many business entities that seek to have a presence in Africa. The government policies have and continue to be favourable to business establishments in Kenya. As in previous years, the government of Kenya is prioritising interests that have a foreign investment connotation. To this extent, global mobility packages that favour international assignments have been undertaken by companies on the grounds of the technical skills and experience that expatriates bring to the country. A smart balance must be attained so that global mobility becomes mutually beneficial. In Kenya, the government ensures that companies balance the skills and experiences brought from abroad with the galaxy of talents locally available. It is not unusual that the government would ordinarily encourage companies to hire a Kenyan citizen if a job or service can be competently delivered by a Kenyan citizen. In a sense, therefore, the decision to issue a work permit is based on a balance that takes into consideration technical skills and investor interests, as well as special projects.

Any application for a work permit must be accompanied by an Employment Report, which is in a prescribed form. This report gives summary information about which locals and non-citizens an organisation has employed. The report forms a good reference point for determining whether an organisation has adopted a human resources strategy that protects the local workforce. Employers are also required to show the steps they have taken to employ a Kenyan citizen before engaging a non-citizen. It is important to prove that the job was advertised and no Kenyan qualified or applied for the given position. The immigration policy envisages benefits accruing from the presence of a foreign national to include the sharing of skills within a reasonable period before a formal handover is undertaken. This handover is technically referred to as a phaseout. Only top positions in the organisational structure are exempted from the requirement to have an understudy. The government is currently very keen to actualise the principles laid out in the localisation policy. All holders of work permits have recently been required to verify the authenticity of their permits, with the aim of singling out permits issued for jobs that Kenyans could easily undertake.

Short-term transfers

Visas

In what circumstances is a visa necessary for short-term travellers? How are short-term visas obtained?

A visa is required for nationals seeking entry into or transit through Kenya. Immigration law prescribes visa regimes that spell out which nationals require a visa to gain entry into Kenya. Visas are issued on arrival for nationals whose countries are allowed entry on arrival. The government still maintains the referral visa regime for select nationals, where their applications are referred to the Department of Immigration headquarters in Nairobi for approval. The following jurisdictions will require their nationals to apply and secure an approval before they arrive in the country: Afghanistan, Armenia, Azerbaijan, Eritrea, Iraq, Jordan, Korea, Kosovo, Lebanon, Palestine, Somalia, Syria and Tajikistan. Even where an expert is coming into the country for a matter of hours only, and the purpose of the visit is work, such an expert requires the requisite work authorisation. A visa is not authority to work. In fact, it is illegal to engage in any kind of work - whether paid or not - on an entry visa.

Restrictions

What are the main restrictions on a business visitor?

A visitor on a business visa is allowed to engage in business meetings or attend training sessions. Any engagement beyond training and meetings will require that such a person applies for a special pass. The special pass can be issued for a period not exceeding six months. This means that you are only allowed two special passes within 12 months. Any engagement beyond six months requires a long-term work permit. A special pass also allows multiple entries without the need for a visa.

Short-term training

Is work authorisation or immigration permission needed to give or receive short-term training?

There is no special permission required. Such a person is required to apply for a visitor’s pass. However, if the engagement is income-generating, the foreign national is required to apply for a special pass. A visitor’s pass does not allow a foreign national to engage in any form of employment or income-generating activity.

Transit

Are transit visas required to travel through your country? How are these obtained? Are they only required for certain nationals?

Kenya has visa regimes that classify different nationals and attach different visa requirements thereto. Some nationals require a visa to enter or transit Kenya, whereas others do not. Transit visas are issued for a maximum period of 72 hours. The person seeking a transit visa should ordinarily be headed to a third destination and must carry an onward ticket to this third destination. Kenya does not have an airside visa for passengers who opt to remain in the precincts of the airport before connecting with their flights.

Visa waivers and fast-track entry

Are any visa waiver or fast-track entry programmes available?

No, Kenya has no fast-track entry programmes. However, the country has a number of visa waiver programmes especially for holders of diplomatic and service passports. Kenya has visa abolition agreements with San Marino, Eritrea and Ethiopia. A holder of a United Nations (UN) or African Union (AU) laissez-passer who is in Kenya for official AU or UN business is exempt from visa requirements, as holders of laissez-passers of many international organisations would be.

Long-term transfers

Categories

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.

Extensions and variations

Short-term to long-term status

Can a short-term visa be converted in-country into longer-term authorisations? If so, what is the process?

A fresh application has to be lodged for every immigration permission. There is no mechanism to convert short-term visas into long-term authorisations. It is possible to lodge the application while the foreign national is in the country. The government has indicated its desire to see assignees secure work permit approvals before they come into the country. This decision will require some legal changes to immigration law.

Long-term extension

Can long-term immigration permission be extended?

A work permit may be extended on application. When the work permit relates to employment (class D permit), there is an obligation on the part of the employer to show that the foreign national’s position or skill is key and strategic to the employer’s organisation and cannot be locally sourced.

Exit and re-entry

What are the rules on and implications of exit and re-entry for work permits?

A foreign national who successfully secures a work permit or a special pass can travel in and out of Kenya during the period in which the work permit or special pass is valid.

Permanent residency and citizenship

How can immigrants qualify for permanent residency or citizenship?

Permanent residency

Section 37 of the Citizenship and Immigration Act provides that the following persons, their children and spouses shall be eligible upon application in the prescribed manner for grant of permanent residence status in Kenya:

  • persons who were citizens by birth but have since renounced or otherwise lost their citizenship status and are precluded by the laws of the countries of their acquired domicile from holding dual citizenship;
  • persons who have held work permits for at least seven years and have been continuously resident in Kenya for the three years immediately preceding the application;
  • children of citizens who were born outside Kenya and have acquired citizenship of the domicile; and
  • spouses of Kenyan citizens who have been married for at least three years.
Citizenship

A person can acquire Kenyan citizenship by birth, marriage and lawful residence in Kenya, subject to some conditions or through presumption in the case of foundlings.

End of employment

Must immigration permission be cancelled at the end of employment in your jurisdiction?

The immigration permission (class D permit) must be cancelled at the end of employment if the duration of employment is shorter than the duration of the class D permit. The cancellation should be made within 15 days of the date of cessation of employment. To cancel a work permission, the employer needs to notify the Department of Immigration, furnish officials with the original work permit and the passport that bears the endorsement. Where the assignee has already left the country, a copy of his or her air ticket must be provided, to prove that he or she has left the country.

Employee restrictions

Are there any specific restrictions on a holder of employment permission?

The holder of a class D work permit is prohibited from engaging in other employment that is not specifically stated in the permit.

Dependants

Eligibility

Who qualifies as a dependant?

Children, spouses and persons being maintained by a person who has secured a work permit qualify as dependants. In practice, this normally applies to married spouses and their children. It is important to have a document that legally establishes the dependency, such as a marriage or birth certificate, etc. The children must be under 21 years old to qualify.

Conditions and restrictions

Are dependants automatically allowed to work or attend school?

Dependants are not automatically allowed to work. Where the dependant engages in employment or other income-generating activity, the dependant pass is deemed to have expired. Dependants must lodge an application for a class D work permit, which must be approved by the Department of Immigration for them to start working. The application is determined on merit. Children attending school are required to acquire a student’s pass. It is the responsibility of the school to ensure that the child has a student’s pass before admission.

Access to social benefits

What social benefits are dependants entitled to?

There are no social benefits that dependants are automatically entitled to.

Other requirements, restrictions and penalties

Criminal convictions

Are prior criminal convictions a barrier to obtaining immigration permission?

Criminal convictions may be a barrier to obtaining immigration permission and especially a work permit. The Kenyan immigration procedures require that any applicant for a work permit must be cleared by the National Intelligence Service.

Penalties for non-compliance

What are the penalties for companies and individuals for non-compliance with immigration law? How are these applied in practice?

Failure to comply with the immigration laws will trigger criminal liability. Section 60 of the Citizenship and Immigration Act provides for a general penalty of a fine not exceeding 1 million Kenya shillings or imprisonment for a term not exceeding five years, or both, for any person convicted under the Act. The Immigration Regulations also provide for a general penalty of 200,000 Kenya shillings or imprisonment for a term not exceeding one year, or both, for any person convicted under the Regulations.

In practice, persons who flout the immigration laws are arraigned in court on criminal charges. A series of other charges can be preferred against the individual as well as against the company he or she works for.

Language requirements

Are there any minimum language requirements for migrants?

There are no minimum language requirements for migrants. Migrants are also not required to sit any tests. In practice, any documents - academic or professional certificates - ought to be in English or translated into English by a recognised translator.

Medical screening

Is medical screening required to obtain immigration permission?

In practice, medical screening is not required to obtain immigration permission. Port health officials are, however, positioned at ports of entry and, where the country of origin poses a threat of contagious disease, officials may require a medical certificate to show that the visitor has been immunised against the contagious disease. If a certificate is not available, medical screening can be demanded in such a scenario.

Secondment

Is there a specific procedure for employees on secondment to a client site in your jurisdiction?

Once a permit has been issued, the employer can second a foreign national to a client site. It is important to have the secondment documents shared with the client for purposes of confirming the arrangement in the event that the foreign national is found working at the client’s site.

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Key developments of the past year40 Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Discussions on localising positions are at the inception stage in Kenya. Since July 2018, when a verification exercise requiring permit holders to verify their work permits commenced, there has been continuous discussion around whether Kenyans can do the jobs in question, with citizens expressing their concerns regarding the number of foreign nationals given work permits. Although the verification exercise revealed approximately 35,000 foreigners with work permits, discussions around the localisation policy have seen many work permits rejected. The main reason given for these rejections is that Kenyans can do the jobs for which the permits are being applied. Localisation demands that investor interests, skill availability, government projects and culture ought to characterise discussion on localisation policy. Whereas immigration law and policy allow the movement of foreign nationals for work-related reasons, immigration officials are expected to safeguard the interests of Kenyans. Every permit in Kenya is issued on the understanding that the activities allowable on that permit will be to the benefit of the country.