Virginia, US
When mobilising expatriates to work in an African country, there are several factors to consider in order to ensure that the employer and employee are compliant with the labour legislations in the host country.
Given the diversity of the African continent and the stringent policies practiced, understanding the labour laws can be onerous.
This blog addresses some questions that every employer should seek to clarify when sending expatriates to work in an African country.
Note that the labour policies in Africa vary per country and each of them are practiced as applicable to the local labour markets. The responses below are, therefore, applicable in the majority of the countries, but are by no means standard to all countries.
Can a work permit application be sponsored by the applicant’s home company?
More often than not, it is a legal requirement in many African countries for the sponsoring entity to be registered in the country. If a company is not registered in the host country, the company is required to engage a third party to sponsor the application. The third party may be a client who will benefit from the services, a government institution if the Government is the beneficiary or a business consulting agency applying on behalf of the company.
However, in some countries, work permit applications may be sponsored by the home company as long as there is sufficient proof that the company is formally engaged to provide services in the host country. In this case, an official document showing proof of engagement may be sufficient for the home company to sponsor the application.
Can foreign nationals required for only a short duration work on business visas?
Performing work on a business visa is prohibited in many African countries. Notwithstanding the duration of stay, the business visa usually restricts its holder to attending meetings and training in the host country. Certain countries allow foreign nationals to perform limited work using the business visa as long as the duration of stay does not exceed a specified, usually short, period of time, and most importantly as long as the employee does not generate profit for work done in the country. However, the allowable activities on the business visa are usually quite ambiguous and subject to interpretation by labour officials. Due to this ambiguity, companies often find themselves facing penalties for bringing in employees on business visas where a work permit should have been obtained.
Since skills and experience are lacking in the labour markets, is it possible to employ more foreign nationals as long as they train citizens in the country?
The argument that skills and experience are lacking in the local labour markets is no longer feasible in many African countries. The number of university graduates without jobs is constantly growing and many governments are faced with the difficult task of creating jobs for citizens. This has led to the implementation of stricter localisation policies, requiring companies to consider citizens for positions in the first instance. Some countries have implemented measures to ensure a balance in the ratio of foreign employees to citizens. Some of these measures include the quota requirement and succession planning. In essence, the employment of citizens is a necessary part of mobilisation which cannot be avoided, and employing a large number of foreign workers will, without doubt, create problems for the company in due course.
It is, therefore, practical to employ citizens and provide them with the necessary skills to fill technical roles.
Is it possible to employ expatriates on the basis of experience alone?
Motivating a work permit application for a foreign national on the basis of experience alone may sometimes suffice, depending on the years of experience or the position the employee will occupy. However, more often than not, the labour authorities in many African countries insist on having tertiary level, or in the absence of this, professional qualifications in addition to the years of experience. This requirement is driven by the fact that the local labour markets are flooded with university graduates whose numbers exceed the capacity of the governments to create adequate jobs. If these graduates are not employed and provided with the relevant platforms to gain experience, it is considered an unfair argument for companies to say that the experience required to occupy technical positions are lacking in the local labour markets.
Can an employee travel and start working in a country once the work permit application has been submitted?
For most countries, applicants are required to remain outside the country whilst their work permit applications are in process. Travelling into the country on a business visa while a work permit application is underway may jeopardise the work permit application and lead to penalties imposed on the company and the employee for non-compliance. Future applications from that company may even be subject to extra scrutiny. There are some countries where a foreign national whose application is in progress may enter the country on a Business Visa. In this case, the foreign national would usually be restricted to conducting only feasibility studies and attending meetings. They may only start working when the work permit is issued.
WHAT TO DO
It is important to have clarity about which practices t are considered to be compliant and which are non-compliant, as well as those which, may appear compliant, but can easily be construed as non-compliant by a labour or immigration official in the country.
Companies are, therefore, recommended to engage with immigration experts to address any questions or uncertainties that they may have with regards to immigration and labour compliance before moving foreign nationals to work in an African country.