GHANA IMMIGRATION LAW: EXPATRIATE WORKERS SEEKING ENTRY AND OR TO DO BUSINESS IN GHANA.
Immigration and labour matters are closely related in the setting of a multinational company or any organization that seeks to employ foreign nationals. This paper focuses on the jurisdiction of Ghana in respect to companies operating in the country that employ expatriates to work or envision to employ expatriates or foreign nationals to work in their companies. The paper further espouses knowledge on what the employers should know and do as far as the immigration laws of Ghana are concerned. Thus, in employing a foreign national the employer must satisfy both the Labour and Immigration laws in order not to contravene the law. This piece seeks to expound on the intricacies of the Immigration Act, 200 ACT 573 and its interaction with the business community in Ghana.
Ghana is known for its good hospitality. This value has been one of the country’s values, a virtue which has attracted foreign nationals into the country since pre-colonial era till date. This article seeks to educate its readers particularly, foreign nationals, investors, person from the Diaspora, multi-national companies which have subsidiaries in Ghana, local company owners who employ or seek to employ foreign nationals and general readers of interest, on how the legal framework of the immigration laws in Ghana affect employment and business transactions.
The Ghana Immigration service is the legal entity that is clothed with legal powers to regulate and monitor immigration matters in the country. That is, entry, residence, employment and exit of foreign nationals in the country. The Ghanaian parliament in the year 2000 passed the Immigration Act 2000, Act 573. This Act is supported by the Immigration Regulations, 2001 LI (1691). The Act expanded the scope and functions of the Service to include indefinite Residence and right of Abode facilities (Service, 2010). The aforementioned inclusions are further discussed in this paper for detailed comprehension.
3. Conditions for Entry into Ghana
A foreign national entering or seeking to enter Ghana must have all legal travel documents right and must enter the country through all approved entry points that is, port or passages. Upon entry the person must avail himself to the nearest immigration officer at the entry point and produce the relevant legal travel document for inspection and complete any prescribe form necessary. The officer after the inspection of documents of the person may allow the person entry into Ghana if there are prohibitions on the person.
It is important per the foregoing introduction to state the conditions of entry into Ghana under the Immigration Act. Section 4 of the Act states clearly the conditions under which a foreign national can enter into Ghana. But these conditions are subject to the discretion of the immigration officer’s satisfaction under the Act per the conditions under-listed.
- For a foreign national to enter Ghana that person must possess a valid passport and or any other travel document and a visa where necessary,
- Where the foreign national or his or her country of origin is exempted from obtaining a visa to enter Ghana.
- That the foreign national has the name endorsed on the visa he or she is holding.
- That the foreign national has indeed applied and been granted an emergency entry permit and
- That the foreign national has been granted or admitted to diplomatic status by the Government.
The above conditions considered by an immigration officer would cause the officer to permit a foreign national entry into Ghana. However, where the officer detects that the foreign national is prohibited from entry into Ghana the officer would deny entry to the particular national.
3.1. Prohibited Immigrants
Per the phrase prohibited immigrant in law means a person who is not a citizen of Ghana and denied legal entry into Ghana. Where an immigrant is prohibited entry and upon unlawful entry that national would be subject to summary conviction to a fine and or a term of imprisonment not exceeding two years per the Act. The law deems a person as prohibited immigrant where the foreign national has a deportation order in force against that person. More so, where the person is unable to show means of support and would be a burden on the public he or she can be deemed as a prohibited immigrant by the officer under the Act. This means that the law arrogates a degree of discretion to the immigration officer to assess whether a person should be granted right of entry in Ghana but within the remits of the law.
In addition, where the person fails to subject him or herself to health examination when required to do so by a health officer or is certified by a health officer to be unfit to enter into Ghana by or the person has been sentenced in a foreign country for an extraditable crime within the Extradition Act of Ghana the person would be prohibited entry. In 2003, the Minister for Interior in his opinion per an Executive Instrument issued an order for the prohibition of entry of Mahesh Vaswani, Sunil Vaswani, and Haresh Vaswani all of Indian and British origin based on the grounds above. The order would not necessarily mention the grounds for prohibition but merely state that the person would not be conducive to the public.
From the foregoing it is apparent that a foreign national who is seeking to do business in Ghana must satisfy the above conditions in order not to be a prohibited immigrant. The same principle applies to companies doing business in Ghana and otherwise seeking to import expatriates human resources to complement its human resource capacity.
Human resource capacity is the stem gem for every company seeking growth and development. In respect of the above multinational companies or local companies who employ expatriate need to consider the laws of immigration or seek legal advice piously to avoid needless immigrant prohibitions or deportation order against their foreign national staffers. Companies can employ external solicitors to assist or process immigration applications on behalf of the employers’ workers.
4. The Law on Employment and Residence of Foreign Nationals
4.1. Residence Permit for Foreign Nationals
Indefinite residence status is a type of permit where a person is granted unlimited stay in a Ghana by the Immigration office but must not stay out of the country for more than 12 months else per the operation of the law the permit is automatically revoked. More important, is that the person applying for this permit must have stayed in Ghana for 5 years preceding the application date.
Residence permit is an authorization to stay in Ghana or a country for a stated period after which expiry date the holder can apply for renewal.
Pursuant to the aforementioned exposition on the conditions of entry into Ghana, residence permit is a condition subsequent to be acted upon. The term condition subsequent means that which the parties can do after the parties or a party has executed specific terms already agreed upon by the parties under a contract. This means that the subsequent act results from or is dependant on preceding terms. Moreover, in this case, where the entry requirements or conditions are satisfied and one has gained entry into Ghana then the person can now apply for resident permit.
That is, a person who has lawfully gained entry into Ghana may personally cause his or her lawyer to apply for residence permit to the Director of Ghana Immigration Service by satisfying the pre-requisites thereof under the Act. Where the Director is satisfied with the application processes his office shall grant the residence permit to the national or the company causing his or her lawyer to apply on his or her behalf.
More importantly, the Act requires that for first time applicants a residence permit of not more than four years shall be granted. But where the applicant has already been granted residence permit his or her application would be treated as renewal and shall not exceed eight years. This basically means that when an applicant’s resident permit expires he or she can keep renewing the permit successively.
4.2. Indefinite Residence Status for Foreign Nationals Generally and Their Spouses
Indefinite residence status is a type of permit where a person is granted unlimited stay in a jurisdiction but must not stay out of the country for more than 12 months else per the operation of the law the permit is revoked automatically and the person is at liberty to apply again. It is worth noting that, the person before applying for the permit must have stayed in the country for at least 5 years preceding the application date.
It is noteworthy to point out that, indefinite residence status is consequent from the grant of residence permit by the Director. Notably, under this particular application for indefinite residence status, one must apply through the Director to the Minister, but must first satisfy the Director on all the pre-requisites under the Act.
Foreign nationals who have companies in Ghana spanning over many years of business may mostly contemplate on the option indefinite residence status. Nonetheless, a foreign national who may be looking at investing extensively may also consider this option as a way to easing immigration procedures and burdens. Thus, where the national has been in the Ghana for example, seven years with investment scattered all over the country the investor may contemplate this status application. The under-listed conditions form the grounds for qualification of a foreign national for indefinite residence status generally:
- The first pre-requirement is whether the applicant hasresided in Ghana throughout the period of twelve months immediately preceding the date of the application. The applicant must have been resident in Ghana for an aggregate of twelve months. The period of residence of the applicant would be evident per the applicant’s passport or travel history with immigration. The applicant must not have interrupted the immediate period of residence immediately preceding the date of application.
- The other condition is that, the applicant has during the seven years immediately preceding the period of the twelve months, resided in Ghana for a period amounting in the aggregate to not less than five years. That is, the applicant need not to have stayed in Ghana for seven years up until the application but the as a matter of fact within the seven years must have an aggregate stay in Ghana amounting to five years per the applicant’s passport.
- The applicant’s character must be attested to in writing by two Ghanaians who are notaries public normally lawyers, senior public officer or any other person the minister deems fit. The applicant must not have been sentenced and imprisoned for a period of twelve months or more. By this the criminal history or clearance is required where the applicant has been sentenced and imprisoned before for verification by the Minister.
- The Minister also has discretion under the Act to assess whether the applicant is capable of making substantial contribution to the economy of Ghana. Where the Minister deems it that the applicant would be a burden on the country he may decline the application. Investors normally do not have problem with the Minister considering this application provided the national’s application and investment document if required are legal and genuine.
- The final most important required is that the applicant must have been granted with a valid residence permit. That is the applicant must possess a legally valid resident permit on the date of the application to the Director.
Form the foregoing, applications by nationals seeking indefinite residence status would be granted per the considerations as above by the Director with approval by the Minister. More so, where an applicant is granted an indefinite residence status he must not be absent from Ghana for more than twelve consecutive months else the indefinite residence status is automatically lost. That is this is cancellation by operation of law as stated by the Act. More analytically where a foreign investor is granted this status but have to check on other business out of Ghana he or she can only be out of Ghana for eleven months in effect. But where a national loses its status he or she may apply but it would be treated as a fresh application subject to the conditions enumerated above.
4.2.1. Indefinite Residence Status and Foreign Spouses
A foreign spouse per the Act is a foreign national who is married to a Ghanaian citizen. Under the act a foreign national can marry a citizen of Ghana and this generally forms the basis for a spouse to apply for indefinite residence status. Just as indefinite resident status, a foreign spouse applying for this status must have stayed in the country for twelve months immediately preceding the date of the application. But comparing indefinite residence status and foreign nationals generally to indefinite residence status, with the former the applicant must have stayed in the country for an aggregate of not less than five years, whereas wither the latter a foreign spouse applying must be two years resident in the country. This will be evident per the travel documents which would be part of the application forms.
Further the applications by a person, the applicant must demonstrate to the Director he or she has not been convicted and sentenced to a term period of twelve months or more or that he or she intends to stay in Ghana permanently. Furthermore, the applicant must have a valid residence permit at the time of application. However, where the applicant is granted the status but leaves the country for business activities or otherwise for more than twelve months the status automatically terminates unless he or she re-applies. The re-application would be treated as a fresh application.
It is noteworthy that, where a foreign spouse loses the spouse (citizen) through death or divorce he or she would not lose his or her status. Moreover, a spouse in these situations only needs to apply to the Director and would be issued with an indefinite residence status for foreign spouse. But in respect to the situation of divorce, upon application to the Director, the applicant must show that the marriage was contracted in good faith and not by fraud.
5.0. Consequences of Indefinite Status
The effect of indefinite status on application is worth examining. First and foremost, the foreign national who has been granted indefinite residence status is entitled to remain indefinitely in Ghana. Further to this, the foreign national can travel in and out of the country to do business or any other activity but must not be more than twelve months out of the country. Such out of stay would cause the automatic cessation of the indefinite residence status enjoyed by the foreign national.
It is noteworthy that, the foreign national under this status is entitled to enter Ghana without a visa. Thus, where the State has granted the grantee or holder of such status it accords the holder this benefit as may be enjoyed by a citizen. The holder of this status would need his or her passport but not visa to travel in and out of Ghana. This would eliminate considerably the burden of traveling procedures required of an immigrant thereby enhancing more allocated time and resources to business promotion and development by the foreign national.
Furthermore, just as benefit is accorded the holder of the status to enter Ghana without a visa invariably affords the holder under this status to work in Ghana as self-employed or as an employee without a work permit. The holder of the status has the benefit to work in Ghana as a self-employed or employee with any company without work permit as compared to an immigrant without the indefinite residence status. Where a foreign national does not have the status he or she needs to apply for work permit in order to work in Ghana. This is discussed into details in 6.0 below.
5.1. Renewal of Permits
Immigrants in general granted any form of permit to reside in Ghana for a particular period under the Act may apply for renewal of the permit upon expiration. The Act requires that immigrants should put in an application one month before the date of the expiration. The legal implication of this is to ensure that the applicant would not be out of time for renewal before he or she applies for permits.
Nonetheless, where one makes the application out of time or the permit expires before the application is made then the applicant has no legal protection and thus, would be deemed in as illegal immigrant in the Ghana. Upon application the Director may renew the permit with effect from the date of issue or from the date of expiry of the previous permit.
6.0. Labour or Employment of Foreign Nationals
Every immigrant seeking to do business or be an employee in Ghana must have permit to do carry on. Moreover, in the circumstances where an immigrant seeks to open a business in Ghana and the type of business is approved that immigrant also needs his or her immigration status regularized. That is, the Act requires that no person shall employ a foreign national in Ghana except with a permit granted by the Immigration Quota Committee. Mostly, lawyers apply on behalf of applicants as the process can sometimes be burdensome for a foreign nationals applying for the permit.
The Immigration Quota Committee is a working-group sanctioned under the Act. It is made up of the Deputy Minister who serves as the chairman, the Director of Immigration and other representatives are prescribed by law. The function of the Committee is generally to receive and consider all applications for immigration quota and work permit.
The Immigration Quota Committee considers all applications for immigration quota and work permits and forwards their recommendations to the sector Minister for issue of an immigration quota and work permit.
The Minister would issue a work permit to an applicant who is not a prohibited immigrant, visitor, tourist, transit passenger or student only if the Committee is satisfied that:
‘‘(a) he wishes to enter Ghana in order to take up work or employment;
(b) he is qualified to work or undertake employment in the trade, business or calling in respect of which the application is made;
(c) his taking up of the work or employment will be to the benefit generally of Ghana; and
(d) he is lawfully resident in Ghana and is qualified to work as an employee or a self-employed.’’
It is instructive to point out that where a company or an individual seeks to employ a foreign nationals at its work place it must apply for a quota from the Committee. A quota will then be granted upon review of the application. More importantly the work permit granted for employment of foreign nationals must specify the number and description of persons authorised to be employed. A company cannot act outside the scope of the law by employing foreign nationals without permits required by law.
6.1. Change or Cessation of Employment, Annual Returns and Renewal
This sub-topic seeks to discuss the obligations of a foreign national who changes or ceases employment and what the foreign national ought to do under the Immigration Laws. The second part in the same vein would expound the obligation owed by the employer to the employee when the latter ceases employment with the applicant employer.
It is trite to mention that where a foreign national commences work with an employer in Ghana the employer or company is required to give notice of the commencement of the foreign national’s employment to the Immigration Quota Committee with a copy to the Director within seven days of the commencement of employment. The content of the letter of notice may include amongst other things a letter of guarantee in respect of the repatriation expenses of the foreign national and the date of commencement of employment of the foreign national. On the contrary, the employee is required to also give notice within seven days of his or her commencement of employment of employment.
Furthermore, where a foreign national ceases to work for a company in Ghana the employer shall give notice of the cessation within seven days to the Immigration Quota Committee and same copied to the Director. The content of the notice shall draw the arrangement for repatriation of the foreign national and the dependents. In the same breathe the employee is required by law to give notice of his or her cessation.
For purposes of immigration law, annual returns includes amongst other things the names and addresses of the foreign nationals employed and any other details of the said employees at the first day of January. The details of the foreign national employed are filed to the Immigration Quota Committee and this is what is called Annual Returns. It must be filed within fourteen days after the first day of January in each year by a company granted immigration quota.
However, where a person or body corporate fails to pay the prescribed penalty within seven days commits an offence and is liable to summary conviction. In the situation of a body corporate the directors shall be held liable in such a breach of the law.
More particularly, a person granted permit to work under the quota for a body corporate is required to renew one month before expiration of that particular permit. This is to avoid a person being out of term with the work permit and liable to an offence. The person may cause his lawyers to apply on his or her behalf or may apply by himself to the Immigration Quota Committee.
6.2. Registration of foreign nationals in Ghana.
It is a requirement of law that foreign nationals who remain in the jurisdiction of Ghana for more than three months must register with the nearest immigration office. The policy behind this law is to have record of foreign nationals in the country at any given time. Over staying three months communicates a presumption of intention to over stay and thus, requires registration, unless a person has registered tenure of stay in the country. A foreign national who contravenes this law by over staying is liable to summary conviction to a fine or a term of imprisonment not exceeding twelve years or both.
6.3. Liabilities of Employers during Repatriation of Foreign nationals employed
Liabilities of employers arise where employers employ foreign nationals in their companies and this makes them liable per various prescriptions of duty imposed on employers’ under the law. These constructive duties are further discussed in this paragraph. From the above submission at point 6.0 (Labour or Employment of Foreign Nationals) explains how employers are required to specify the number and descriptions of foreign persons to be employed. Further in point 6.1 (Change or Cessation of Employment, Annual Returns and Renewal) explains how employers are required to give notice to the Immigration Committee at the time a foreign national commences work with the employer. Thus by that the employer in a prescribe form furnishes the Director with a letter of guarantee in respect of repatriation expenses of the foreign nation and the same notification is required of the employer upon cessation of employment by the foreign national. From the foregoing indicates that the employer guarantees for the employee against repatriation and indeed during the advent of same the guarantor employer is relied upon per the agreement undertaken the employer. The combined effect of this is what is under pinned under section 33 of the Immigration Act 573, Act 2000.
“(1) where an employer furnishes to the Director a letter of guarantee in the prescribed form in respect of the repatriation of a foreign national, the employer:
(a) is liable to pay under the guarantee the repatriation expenses if the foreign national ceases for any reason to be employed by the employer; and
(b) is liable to pay under the guarantee the repatriation expenses of the dependants of the foreign national in the event of the death of the foreign national.
(2) The employer may be released from his guarantee if the Director is satisfied that alternative security for the repatriation of the foreign national and his dependants has been supplied or if the Director is satisfied that the foreign national and his dependants have left Ghana”
Moreover, per the law where the employer furnishes the Director with letter of guarantee in respect of repatriation as required the employer is liable to the foreign national’s repatriation expenses. This is a contractual undertaking and only fulfilled upon realization. The purpose of this is to ensure that there are at all times funds first hand available for the repatriation process of the foreign national should the case be so.
This means that employers must fully assess their financial situation and the implications before employing foreign nationals. But it is imperative to indicate that, where the Director is content with the existence other arrangements for the repatriation of the foreign national and his or her dependants and is enough surety than that of the employer, the employer would be relieved of bearing the expenses of the employee. This discussion leads us to interrogate and discuss the position of the law on “deportation of foreign nationals”.
7.0. Deportation of Foreign Nationals
Deportation of foreign nationals arise out of the breach of the laws of Ghana and of which the law requires deportation of the foreign national. Per the law deportation means the transportation and removal of a person and the dependants from Ghana under the Act. Deportation of a foreign national either with resident or working permit may arise in varying situations. The order of deportation is made manifest by a Court or deportation Order by Minister per an Executive Instrument. In order to understand how deportation arises it would be best to discuss the liabilities to deportation.
7.1. Foreign Nationals Liabilities to Deportation
It is important to note that where a foreign national contravenes the laws of Ghana and the Court convict and sentences the person for an offence punishable by a term of imprisonment exceeding three months with or without fine is subject to deportation. Subsequent to this, the Court must write a report to the Minister serving notice of the Courts order to him to effect the order using the necessary executive powers. This notwithstanding, the Court in assessing some of the grounds for deportation it would consider whether the person is a destitute or is without means of support. The Court would further consider whether the person is of unsound mind and a prohibited immigrant; whether he or she is in Ghana without a valid permit, or whether any of the conditions on which the permit was granted has been broken or whether the presence of the person is not conducive to the public good of the Republic of Ghana.
The laws allow the Minister to deport a person liable to deportation in accordance to the laws and not arbitral. The order may be made subject to the conditions imposed by the Minister. This may be discretionary but a person has right in law to appeal the order in Court. In 2005, the Minister exercised this legal mandate when he found in his opinion the continuous presence of one Julien Hazael Ayayi. The Minister was of the position that the Liberian was not conducive to the public good. Per the powers conferred on the Minister for Interior under the Immigration Act, 2000 Act 573 ordered that the above named person should leave the country by 12th day of January, 2005 and thereafter to remain out of Ghana. In the same vein the Minister may revoke an order of deportation by the same means. This was evident in 2001 where the Minister revoked the deportation order of one Dr. Teddy Yeh
It is of essence to point out that upon the order of deportation the person liable must comply and be removed from Ghana immediately thereafter. In the instance where the person entered the country in the clear contravention of the law the person commits an offence and is liable on summary conviction to a term of imprisonment not exceeding five years and may be deported without further deportation order being made. But where a person to be deported is already serving a sentence of imprisonment, that person may complete his term before being subject to the deportation order per a directive of the minister. A person wishing to revert the deportation order must appeal the order through the Courts.
The purpose of this article is to inform readers of the operation of the Immigration Laws of Ghana with respect to foreign nationals and companies employing same. It further discussed the conditions of entry in Ghana and both resident and working permits. A thorough discussion was made on the law on employment and residence of foreign nationals as well as the consequences of indefinite status and the employment of foreign nationals. The article concluded by discussing deportation of foreign nationals.
This article in no doubt would
provide employers with rich knowledge with respect to the law of Immigration in
Ghana and especially when employers desire to employ foreign nationals into
their company. This does not exclude individuals who seek personal knowledge
for self-indulgent purpose.
 LI means a Legislative Instrument
 Ghana Immigration Service
 This means a person who is not a citizen of Ghana.
 Immigration Act 573, Act 2000
 Section 8 of Immigration Act 573, Act 2000.
 Section 8 (1) (b) Immigration Act 573, Act 2000
 Section 8 (1) (c) Immigration Act 573, Act 2000
 Executive Instrument Prohibition Order, 2003 (E.I. 7)
 Section 13 (2) Immigration Act 573, Act 2000
 Section 13 Immigration Act 573, Act 2000
 Section 15 (1) (a) Immigration Act 573, Act 2000
 Section 15 (1) (c) Immigration Act 573, Act 2000
 Section 15 (1) (d) Immigration Act 573, Act 2000
 Section 15 (e) Immigration Act 573, Act 2000
 Section 15 (3) Immigration Act 573, Act 2000
 Section 15 (4) Immigration Act 573, Act 2000
 Section 56 Immigration Act 573, Act 2000
 Section 16 Immigration Act 573, Act 2000
 Section 16 (5) Immigration Act 573, Act 2000
 Section 16 (6) Immigration Act 573, Act 2000
 Section 18 (1) (a) Immigration Act 573, Act 2000
 Section 18 (1) (b) Immigration Act 573, Act 2000
 Section 23 (1) Immigration Act 573, Act 2000
 Section 23 (2) Immigration Act 573, Act 2000
 Section 27 (3) Immigration Act 573, Act 2000
 The employer may be a company registered under the laws of Ghana or a multi-national company with a branch in Ghana.
 Section 30 (1) (a) and (b) Immigration Act 573, Act 2000
 Section 30 (2) (a) and (b) Immigration Act 573, Act 2000
 Where a company the directors or officers would be held culpable.
 Meaning trial for not serious offences. Convictions don’t exceed two years. But with this offence is term of imprisonment of not less than six months or more than two years or to both fine and term of imprisonment.
 Section 34 (1) and (2) Immigration Act 573, Act 2000
 Section 8 Immigration Act 573, Act 2000
 Section 35 Immigration Act 573, Act 2000
 Section 36 Immigration Act 573, Act 2000
 Executive Instrument Deportation Order, 2005 (E.I. 1)
 Executive Instrument Deportation (Revocation) Order, 2001 (E.I. 1)
 Section 37 (1) and (2) Immigration Act 573, Act 2000