Duties And Obligations Of Employers Upon Employing Expatriate Employees

Introduction 

We discussed what it takes to hire an expatriate worker in Kenya in our earlier article, in addition to that it is critical that employers comprehend their duties and obligations when hiring expatriate employees.  This Article aims to provide an overview of some of the key duties and continuing obligations that employers of expatriate workers should comply with. 

Key Duties and  Obligations of Employers 

The provisions of the Kenya Citizenship and Immigration Act 2011 and the underpinning regulations thereof have stipulated the key duties and obligations of employers who engage foreign nationals as discussed below. 

1. Duty not to employ  some category of persons  
   The Kenya Citizenship and Immigration Act expressly provides that employers should not employ foreign nationals who entered Kenya illegally as well as those whose status renders them ineligible for employment. The latter may be the case where the foreign national holds a dependent pass, a visitor’s pass or is a diplomat who has not been relinquished of their diplomatic rights. 
2. Duty to ensure that the expatriate employee undertakes the role specified in the work permit  
   Employers should only engage foreign nationals on terms, conditions or in a capacity for which their status authorizes. Where a foreign national enters the country to provide, engage in or offer specific services to the employer, the employer should ensure adherence to such intended services without deviation.   
3. Duty  to obtain relevant work permit
   An employer is required by law to apply for and obtain a work permit or a pass allowing the foreign worker to engage in employment. It is illegal for an employer to hire a foreign worker without first obtaining the necessary work permit or pass. It is thus important for the employer to familiarize themselves with the applicable permits and passes in order to comply with this requirement. In our previous article, we discussed Class  D (employment) work permits and special passes. (You can access the same here ). 
4. Duty to keep clear and comprehensive records with respect to  the expatriate employee
   An employer should maintain a record of the expatriate employee whose particulars include: their name, travel document or passport number, nationality, date employed, job title, class of permit or pass held among others as provided for under the Kenya Citizenship and Immigration Regulations of 2012. Such records should be maintained for a period of two years after the termination of employment of the employee.   
5. Duty to file requisite  reports  with the Director of Immigration Services  
   Employers are required to file a report in respect of all foreign nationals under their employment. Further, where in the course of employment, an employer becomes aware of a breach on the employee’s side, such report should be made and filed with the Director of Immigration Services.  
6. Duty to make and file reports with the relevant authorities; 
   Where a foreign national commits an illegal act, an employer has the duty to report the illegality to the relevant authority, officials or institution. Failure to report such acts to the relevant authorities may render them equally liable.  
7. Duty to ensure compliance with all the legal requirements 
   It is the responsibility of the employer to ensure that the foreign worker complies with all legal requirements and rules related to working in Kenya. As such it is important for the employer to take all reasonable steps to ensure such compliance. 
8. Duty to report Cessation of Employment 
   The employer must notify the Director of Immigration Services when an employee ceases to work for the organization. Additionally, the employer must forward the original work permit, alien card, and any dependent pass to the Director of Immigration Services for cancellation within fifteen (15) days. 

Conclusion 

From the foregoing, it is imperative for employers who engage expatriate employees to familiarize themselves with the duties and compliance requirements involved. By doing so, they can fulfil their legal obligations effectively. As discussed, failure to discharge these obligations may result in legal consequences. Therefore, proactive adherence is essential to ensure legal compliance and avoid potential violations.  

Contact Persons & Contributors 

Emily GITAU (Associate Advocate) Corporate Commercial Law & Employment/Labor Law Unit -Email: egitau@cmadvocates.com  

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

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a phone call, videoconferencing, etc. For any enquiries on this or any other matter do not hesitate to contact us via email at our Immigration & Global Mobility practice group through immigration @cmadvocates.com  or book a virtual consultation here https://cmadvocates.com/cm-request-consultation/. 

Disclaimer 

This article is for informational purposes only and should not be construed as legal advice.