Intending To Recruit An Expatriate Worker In Kenya? Key Considerations For Employers

Introduction 

We are living in a time when organizations are keen on hiring skilled professionals from abroad when seeking out employees whose specialized skills and experiences may not be readily available locally. Navigating the process of hiring an expatriate worker in Kenya requires adequate consideration owing to the legal requirements attached. Therefore, it is imperative for employers who plan to recruit foreign workers in Kenya to comprehend immigration law and other essential legal compliance requirements. This article seeks to delve into some of the essential conditions that employers must fulfill to hire an expatriate/ foreign worker. 

Key considerations for employer:
1. Demonstrating that the talent is not available in the local market:
Noting that it can be unfair to hire expatriate employees for jobs that local citizens can perform, the employer must convince the Director of Immigration Services that the talent sought is not available in Kenya’s labor market. In some instances where the skills sought are available, the employer should show how the employment of the expatriate worker will benefit the country. This can be accomplished by putting out a local job advertisement and carrying out an exhaustive recruiting and selection procedure. The employer should also demonstrate that the candidate is highly qualified and that his/her skills will benefit Kenya's local labor market.

2. Having a Kenyan understudy in place:
We have established that an employer must demonstrate that the skills and qualifications are unavailable in Kenya’s local labor market and where this is not the case, then the benefit that would accrue to the country as a result of the recruitment.   Having one or more Kenyan understudies who will be learning from the expatriate during the employment term is thus crucial. 

3. Compliance with the Local Employment and Labor Laws:
Depending on the nature of the task that the expatriate is meant to undertake, the employer needs to ensure compliance with the local employment and labor laws.

4. Obtaining the relevant Immigration documents; 

It is important to highlight that pursuant to the provisions of section 45 (2) of the Kenya Citizenship and Immigration Act,  it is the obligation of the employer to ensure that the expatriate employee possesses the necessary work permit before commencing the proposed employment. The specific type of Immigration document is dependent on the duration of the intended, as elaborated below:
i. Long-Term Employment  
The applicable work permit is known as a Class D (Employees) Work Permit which is normally issued for a period of Two (2) years. It would be an offence for an employer to hire an expatriate employee without having procured the said work permit. 

 ii. Short-Term Employment.  
Where the expatriate employee is engaged on a short term of not more than Six (6) months, the employer should procure a Kenya Special Pass (KSP) whose validity is 6 months. It would be important to note that,  it is an offence for an employer to hire an expatriate employee to work even for a short duration without obtaining this pass. 

iii. Relevant Immigration Documents for the Immediate Family of an  Expatriate Employee
When an employer hires an expatriate worker who may want to move with their family, upon successful issuance of a Class D work permit it's crucial to get the necessary immigration paperwork, such as the Kenya Dependent's Pass (KDP) for the worker's immediate family who include a spouse, children under the age of 21 years, and any additional qualified dependents. A student pass is another important document to have for school-going children to allow their use of Kenya's educational facilities. The employer needs to ensure that the family members of the employee who are residing in Kenya hold the appropriate immigration documents. This precautionary measure is vital to avoid situations where they run afoul of the law, as this could potentially affect the employee as well as the employer. 

Adherence to the existing tax framework for expatriates  

The employer needs to understand and adhere to the tax framework with respect of expatriates.  

How we at CM Advocates can assist you: 

• Procuring the relevant immigration documents for expatriate employees as well as their dependents; 
• Offering comprehensive advisory in matters of Immigration; 
• Advising  on Employment and Labor Law matters; 
• Advising on Tax matters; 
• Drafting the requisite Employment contracts; 
• Offering employer of record (EOR) as well as payroll services for employees;  
• Conducting immigration audits to ensure that organizations are and remain compliant with the immigration requirements and regulations; and 
• Offering advisory services on any other related issue thereof.  

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 

Contact us now! 

Whether you are based in Kenya or abroad, we offer support over email, 

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.