Spouses Of Diplomats And Doing Business In Kenya (receiving State): What Are The Options?

Diplomats in Kenya such as, accredited representatives to Kenya of foreign governments, persons enjoying immunities and privileges as set in laws relating to privileges and immunities, accredited diplomatic or consular staff, official staff of accredited representatives to Kenya of the foreign governments and any person or class of persons exempted by the relevant Cabinet Secretary from obtaining a work permit by Gazette Notice are exempted from the requirement of obtaining a work permit. Likewise, their spouses and children are also exempted from obligations of procuring work permits and are also accorded with diplomatic immunity while living in Kenya as the receiving state. 

The question therefore begs, can the spouse of a diplomat work for gain in Kenya? Noting that they are not required to procure a work permit, what enterprises can they engage in and what are the restrictions? 

The short answer: yes, the spouses to diplomats can engage in work for gain. 

The long answer, such engagement is subject to fulfilling the following conditions:

a) Relinquishing the diplomatic immunity – The very first step shall be communicating in writing to the Director of Immigration Services indicating the intention to withdraw the exemption status and therefore relinquish the diplomatic privileges and immunities.

One cannot continue enjoying diplomatic immunities and privileges upon successful issuance of an immigration work permit since section 34(2) of Kenya Citizenship and Immigration Act exempts them from obtaining a work permit.  The Immigration department shall, upon receiving the communication, relay this information to the Ministry of Foreign Affairs to have the applicant’s diplomatic ID cancelled. One may also be required to provide a recommendation letter from the diplomatic mission or the respective organization when making this application.

 b) Application for the applicable work permits

Depending on the nature of enterprise the applicant wants to engage in, he/ she can apply for any of the permits below:

• Investor’s work permit- this permit is ideal for an applicant who is desirous of undertaking general investment business through a company. The first step one needs to take is to register the company and provide evidence of funds to utilized for the investment business. 

The Companies Act, 2015, allows a one shareholder one director company and as such the applicant can choose to engage in the business alone or in partnership with others. There is however a restriction in certain industries such as banking, insurance and telecommunication.  

Upon successful registration of the company or business one may proceed to apply for an investor’s work permit. The application must be supported with the applicant’s particulars as well as evidence of ready capital for the investment which should amount to not less than USD 100,000.

• Employment work permit- this permit, also known as Class D Permit, is suitable for persons wanting to be employed within Kenya. This permit is issued under a specific employer and authorizes the employee to only use the work permit to work for the specified employer. The application is supported by the employee’s qualifications as well as confirmation that skills or qualifications needed for that job are not available in Kenya.
• Obtaining Class I work permit - this is applicable when the applicant wishes to engage in religious or charitable activities for the benefit of the receiving country and the society. The proposed activities are usually undertaken through a society registered under the Societies Act; a foundation registered under the Companies Act; or under a trust registered under the Trustees Act.
• Obtaining Class C Work Permit - this is applicable for persons who are members of prescribed profession and who wish to engage in such profession whether alone or in partnership with another. The applicable regulations note the following as the prescribed professions: medical profession, dentists, legal profession, surveyors, estate agent, valuer and land agent, architects or quantity surveyors, pharmacists, veterinary surgeons, engineers, nursing profession, physiotherapists, accountants, chartered secretaries, actuaries, scientist, information and communication technology experts. 

Conclusion

A work permit is subject to renewal after every two (2) years. However, where a resident has held a valid work permit for a period of seven (7) years, the resident is eligible to apply for Lawful Permanent Residence or Citizenship.

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

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