The Significance of an Understudy When Applying for a Class D (Employment) Work Permit in Kenya.

Published on May 7, 2024, 12:31 p.m. | Category: Immigration & Global Mobility

Introduction

A Class D work permit (also known as Employment Permit) is normally issued to foreign nationals who have been offered specific employment by a specific employer in Kenya. The employer can either be a private organisation, the Government of Kenya, or United Nations organization (applicable only to employees who have not been exempted from obtaining a work permit). An employer applying for a work permit for a foreign national is required to demonstrate to the Director of Immigration Services that the foreign national possesses qualifications and skills that are not readily available in the Kenyan market, or that the foreign national’s skills shall be of benefit to Kenya.

Therefore, the Government’s policy is to at least discourage Kenyan employers from recruiting foreign workforce, especially with respect to jobs that can be done by Kenyans. In that regard, if it merits them to hire a non-Kenyan for a specific job, they should have a Kenyan Understudy/understudies who will be trained by the foreign employee in the course of employment. This article highlights the significance of having a Kenyan Understudy when applying for a Class D (Employment) Work Permit.

Who is an understudy?

An understudy in this context is a Kenyan trainee who is employed by a specific employer here in Kenya, and who will specifically be trained by a foreign employee in the course of employment. The understudy should at least have relevant qualifications for the work the foreign employee has been offered to do in order to benefit from the foreign employee’s skills.

Why an understudy?

The primary role of an understudy is to learn from the Non -Kenyan Employee in the course of the employment and during the validity of the work permit. The Government’s ideal position is to have Kenyan organizations employ Kenyan citizens to work for them and avoid depending on foreign labour, especially for jobs that can be done by Kenyans. This policy might be explained by the fact that there are scarce job opportunities in the country and there is also a great risk for the country to majorly depend on a foreign workforce.

There might however be instances when the qualifications and skills being sought by an organization are not readily available in the Kenyan market, necessitating the need to employ a foreign national. In that case, when an Employer is applying for a Class D (Employment Permit) for a foreign national the employer will have to demonstrate to the Director of Immigration Services;

1. The steps that have been taken to establish that the qualifications and skills are not readily available in Kenya;

2. Provide all the relevant details of the Kenyan Understudy such as employment contracts, identification documents, curriculum vitae, academic documents and any other relevant; and

3. State the steps that shall be taken during the validity of the permit to engage a Kenyan Understudy.

The presence of an understudy therefore enhances capacity building within the Kenyan workforce creating a more skilled workforce that competes favourably in both the local and international job markets.

It is worthwhile to note that an employer can also designate more than one Kenyan Understudy to learn from the foreign employee during the course of employment.

Qualification of the understudy

The understudy should possess qualifications relevant to the work that the foreign employee has been offered to do. Having an understudy who is from a totally different profession from that of a foreign employee will defeat the purpose of having the understudy in the first place.

Accordingly, an employer, making an application for a class D (employment) work permit is required to provide in the application, a detailed curriculum vitae of the understudy together with academic certificates, employment contract, identification documents and any other supporting documents These documents are important in determining the relevance of the understudy’s qualifications.

Conclusion

It is a legal requirement for all class D (Employment) work permit applications in Kenya to be accompanied by details of an understudy who will be trained by the foreign national during the person’s employment. The Director of Immigration Services may reject applications where the employer has not designated an understudy to learn from the expatriate employee, not unless there are sufficient justifications why the employer hasn’t assigned an understudy.

Furthermore, it is illegal for an employer to give false or misleading information, and the Kenya Citizenship and Immigration Regulations of 2012 require the Director of Immigration Services with or without prior notice to visit workplaces to confirm information submitted by employers in applications.

How we can assist you at CM Advocates LLP

1. Procuring work permits for expatriate employees;

2. Obtaining dependent passes for dependents of expatriate employees;

3. Drafting employment contracts and advising on labour and employment matters;

4. Offering comprehensive advisory on immigration matters;

5. Conducting immigration audits to ensure that organizations have complied with Kenyan immigration laws; and

6. Offering advisory services on any other aspect of law.

Contact Persons & Contributors

Wahu WAMBUGU (Immigration Lawyer)- mwambugu@cmadvocates.com

Caiphas CHEPKWONY (Associate Advocate)- cchepkwony@cmadvocates.com

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