The permit verification and foreigner registration exercise was concluded on 22 July 2018. Based on the feedback received from the Department of Immigration Services (“DIS”), the exercise was a success and provided invaluable insight into the current immigration regime and status of foreigners in the country.

The DIS acknowledges that there are foreigners holding valid permits who may have been in the country but unable to attend the exercise for reasons such as illness or being out of the country. The DIS is processing such cases on the condition that they provide a copy of a medical report from a certified medical doctor or copies of exit and entry stamps in their passport together with a letter from the company confirming that they were out of the country on company business.

To address the loopholes identified during this exercise, the Cabinet Secretary for Interior and Coordination of National Government has directed that the DIS implement a raft of changes, including the following (some of which are provided in law but have not been enforced):

• New strict guidelines to be used in the vetting and approval of applications for permits and passes have been introduced
• Severe penalties aimed at companies employing foreigners without proper work authorization and foreigners working without proper work authorization to be introduced
• Maintenance of an up-to-date digital database on foreigners (Biometric Foreigner Registration Process - Pilot ongoing)
• Foreigners shall NOT be allowed to come into the country prior to the approval of their application (Section 40 (3) (a) of the Kenya Citizenship and Immigration Act provides that the “Director shall issue a permit of the required class to a person who is not a prohibited immigrant or inadmissible person, who has made an application in the prescribed manner before entry into Kenya”)
• Applications for renewal of permits should be made at least 3-4 months before the expiry of an existing permit to ensure that the new permit is issued before the expiry date
• Enforcement of the five-year duration for permits, particularly in respect of Entry Class D Permits (Employment Permit) ((Regulation 24 (2) of the Kenya Citizenship and Immigration Regulations provides that “no permit shall be issued or renewed under the Act for a period exceeding five years from the date of issue or renewal, as the case may be”)

The following measures with respect to understudies for Employment Permits shall apply:

• As a general rule, all applications must include an understudy together with a clear roadmap of the training, transition and phase-out period
• In the event of a renewal of an application for a position which the DIS expects should have been transitioned to an understudy or other Kenyan with the required skills, a justification for the renewal should be provided
• Where an understudy position does not apply, reasons must be given why the understudy is not required
• Setting up a dedicated hotline to allow members of the public to report cases of persons working without permits
• Impact on business: High

We expect the DIS to continue with the ongoing national surveillance, compliance spot-checks and raids. Employers should therefore ensure that all foreigners in their employment have valid work permits and document foreigner phase-out plans in line with the DIS guidelines above.

We shall continue to update you as we receive information from the DIS.

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