The Case For Foreign Nationals Seeking To Work In Kenya

Foreign nationals who wish to engage in gainful ventures in Kenya must comply with the provisions of the Constitution of Kenya, the Citizenship and Immigration Act (the “Act”) and underpinning Regulations. They must also comply with the laws and prescriptions of the specific industries that they wish to venture into. The first step is usually to obtain lawful residence status either as holders of valid work permits, permanent residents or Kenyan citizens. By this article, we highlight the various classes and categories of work permits prescribed in law. WORK PERMITS A work permit is a document issued by the Director of Immigration Services, under the provisions of section 40 of the Act, to enable foreign national (s) enter Kenya and engage in trade, prospecting, farming, business, professional employment, missionary activities and reside in Kenya. The Director issues the permits upon the recommendation of the Permit Determination Committee, an inter-ministerial Committee appointed by the Cabinet Secretary Ministry of Interior and Coordination of National Government. Any person aggrieved by the decision of the Director regarding work permit applications, may appeal to the Cabinet Secretary, for review of the decision. There are various classes of permits as provided for under Section 36(1) of the Act, as read with the Seventh Schedule of the Kenya Citizenship and Immigration Regulations, 2012 as listed below: - I. Prospecting and Mining (CLASS A) This class of work permit is issued to a person or a group of persons who, alone or in partnership, intend to engage in either prospecting for minerals or mining in Kenya. Such a person(s) is also required to be the holder of a prospecting or mining right or license under the Mining Act, 2016 and must provide proof of funds for investment to the tune of USD 100,000 (approximately KES 10,000,000). They must also demonstrate the benefit that shall accrue to Kenya and its economy through their mining and prospecting activities and that their activities shall not result in environmental degradation. II. Agriculture and Animal Husbandry (CLASS B) This permit is sought by persons looking to engage in crop and livestock farming in Kenya. They are expected to provide proof of ownership of an interest in land suitable for their specific enterprise as well as adequate financial resources at their disposal for the venture. III. Prescribed Profession (CLASS C) This class of work permit is available to members of prescribed professions from other jurisdictions looking to alone or in partnership with others set up their practice in Kenya. They must provide their academic and professional qualifications together with proof of membership to relevant professional bodies in their countries. They must also comply with the laws, regulations and codes governing similar professions here in Kenya including registration with the relevant professional bodies here in Kenya. The professions recognized in Kenya are the medical profession, dentists, legal profession, surveyors, estate agents, valuers and land agents, architects or quantity surveyors, pharmacists, veterinary surgeons, engineers, nursing profession, physiotherapists, accountants, chartered secretaries, actuaries, scientist, information and communication technology experts. IV. Employment (CLASS D) This class of work permit is issued to a person who possess demonstratable skills or qualifications that are not available in Kenya, who has been offered specific employment in Kenya to the ultimate benefit of the country. The Kenyan employer must provide proof of attachment of a Kenyan understudy to the said foreign national with a view to shadow them and acquire the unique skills in their employ. This is a pre-requisite for issuance and subsequent renewal of this class of work permit. V. Specific Manufacturing (CLASS F) The manufacturing industry is one of the key drivers of the Kenyan economy and the government has continued to prioritize and invest heavily in the sector through both local and foreign investment. The Kenya Investment Authority has identified the manufacturing industry as one of its key sectors in promoting foreign investments in Kenya. Foreign nationals who wish to venture into specific manufacturing activities with demonstrated benefits to the economy of Kenya are eligible for Class F work Permits provided that they must also obtain relevant sectoral licenses and approvals. They must also provide proof of investment capital of not less than USD.100,000. VI. Trade, Business or Consultancy (Class G) Many foreign nationals seeking to invest in Kenya who do not fall under the specific industries and sectors discussed above (mining, manufacturing, professional services, farming and animal husbandry) come under the purview of the Class G Work Permit which allows them to invest in any other sector in Kenya subject to compliance with the laws governing the said sector. They must also provide proof of investment capital of at least USD 100,000. VII. People working with charitable and religious organizations (Class I) Volunteers, missionaries, pastors and other person within this description who seek to undertake charitable work in Kenya for the benefit of a group of or the general public in Kenya are eligible for Class I Work permits. These persons must be flanked by a non-profit organization (whether local or international) registered in Kenya or having a permanent establishment in Kenya. For organizations registered under the Non-Governmental Organization Coordination Act, 1990 as read together with the Public Benefits Organization, 2003, they must obtain recommendation from the NGO Coordination Board for issuance of the Class I work permit to the foreign nationals volunteering in the organization. VIII. Ordinary residents (Class K) This is an ostentatious class of work permit available to foreign nationals who wish to reside but not work in Kenya provided that they are over thirty-five years of age and have at their disposal an assured income of not less than USD.24,000/- per year. This income must be derived from sources other than employment, occupation, trade, business or profession engaged in Kenya, and may either be income derived from sources outside Kenya or from pension or annuity payable from sources in Kenya. In order to qualify for this permit, the foreign national explicitly agrees to not accept employment, paid or unpaid or engage in income generating activity in Kenya without obtaining the permits under other classes, as discussed. This class of work permit is popular with retirees who may choose to remain in Kenya after their retirement and often precedes their application for permanent residence or citizenship in Kenya. They must however demonstrate that they presence in Kenya will be of benefit and not burdensome to the country. IX. Refugees (Class M) This class of permit is available to persons who have been granted refugee status in Kenya or their spouse who intends to engage in any occupation, trade, business or profession in Kenya. Prior to submitting their application, they must obtain a letter of recommendation from the Department of Refugee Affairs. It is worth noting that this class of work permit is issued free of charge save for the usual disbursements and the professional fees chargeable. Conclusion At CM Advocates LLP, we offer bespoke world class legal services concerning all your immigration, labour and employment matters. We are practical in our approach and offer quick turnaround timeframes for all applications. We will be delighted to receive your feedback and enquiries on this and any other of our articles. In case of any queries and or if in need of any clarification, do not hesitate to contact the undersigned or route your queries through immigration@cmadvocates.com and +254716209673.