Nigeria: Corporate Immigration In Nigeria

As countries welcome growth and investment, ingenious individuals similarly recognise the importance of spreading the risk of their corporate portfolios, with an increasing trend of entry into new markets, whilst continuing to maintain a foothold in their home country. It has become common for entrepreneurs and corporate executives to go beyond their borders seeking to establish their businesses globally or in certain cases, seeking investment opportunities.

Consequently, a level of flexibility for the purpose of ensuring ease of movement across borders is required to be competitive in the international market space.¹ There are various factors that necessitate the migration of corporations, and these include: the desire to establish presence in a new market, opportunities to improve the brand quality, access to best talents, and proximity to suppliers or natural resources, amongst others.

Nigeria has witnessed a massive influx of corporate migrants over the past years. In 2017, Foreign Direct Investment ("FDI") totaled 92.7 million USD for both Inward Flow and Stock, and 101.7million USD for both Inward Flow and Stock in 2018² and according to the United Nations Conference on Trade and Development ("UNCTAD") 2020 World Investment Report, the total FDI flows to Nigeria in 2019 was up to 3.3 billion USD.³ In 2020, Nigeria attracted a total FDI of 2.6 billion USD⁴ and in Q1 and Q2 of 2021, FDI totaled 154.76 million USD and 77.97 million USD, respectively.⁵

Regulatory Framework for Corporate Immigration in Nigeria

The primary sources of law regulating immigration in Nigeria are the Immigration Act, 2015⁶ (the "Act") and the Immigration Regulations, 2017⁷ (the "Regulations"). The Act ensures that Nigerian immigration laws and policies adequately reflect modern migration management and conform with international best practices, while the Regulations provide the legal framework for the effective implementation of the Act.⁸ Other relevant legislations that make up the legal framework include the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Nigerian Oil and Gas Industry Content Development Act, 2010. The authorities that oversee the administration and enforcement of these laws are the Federal Ministry of Interior (FMI), Nigeria Immigration Service (NIS), Federal Ministry of Foreign Affairs and Nigerian Content Development and Monitoring Board (NCDMB).

Penalties for non-compliance with the immigration laws include the payment of fines, imprisonment, deportation for individuals, and in respect of companies, could range from payment of fines to an application for winding up the entity.⁹ Pursuant to the provisions of the Immigration Act, an individual can be summarily convicted for an offence under the Act by any competent court. The penalty may be either the payment of a reasonable fine or term of imprisonment as stipulated by the law. Also, where it appears to the Comptroller-General of Immigration (CGI) that the business owned by a deported immigrant should be wound up, the CGI may make the necessary application to a competent high court.¹⁰

Company Immigration and Employment

Corporate immigration can be achieved by a corporation moving into Nigeria to establish itself or individuals seeking for employment opportunities in Nigeria.

As in any other country, non-Nigerians who wish to enter Nigeria must obtain a visa. A Nigerian visa is obtainable from a Nigerian Diplomatic Mission (the "Mission") in the country where the intending visitor is domiciled. Where there is no Mission in that country, the visa may be obtained from a Mission in the country nearest to the country of domicile.¹¹ The Mission may make country-specific rules. All prospective applicants are advised to first make enquiries from the Mission and further advised to comply with the country-specific rules (if any) made by the Mission.

Every non-Nigerian who has entered Nigeria legally and who wishes to reside and or work in Nigeria must make an application for a Combined Expatriate Residence Permit and Aliens Card (a "CERPAC"). A CERPAC is valid for two (2) years, is renewable and is classified into two (2) categories, a Green Card and a Brown card. Possession of a CERPAC Green Card allows a non-Nigerian to reside in Nigeria and carry out an approved activity as specified in the card, or to accompany a resident or citizen of Nigeria as a dependant. Possession of a valid CERPAC Green Card does not exempt the holder from having a valid entry or re-entry visa. Holders of resident status in Nigeria who are proceeding on leave or temporary duty outside Nigeria should apply for re-entry visa before their departure from Nigeria. Non-Nigerians resident in Nigeria or visiting with the intention to remain in Nigeria in excess of fifty-six (56) days as well as members of the crew of a ship leaving their ship and staying ashore in excess of twenty-eight (28) days are required by law to register and obtain a CERPAC Brown Card.

Almost all applicants for a CERPAC are employed by companies or individuals running businesses in Nigeria. The employers must first apply for and be granted an Expatriate Quota. The Expatriate Quota scheme is designed by Government to prevent the indiscriminate employment of expatriates where there are qualified and suitable Nigerians to fill those positions.¹² Hence, employers who wish to hire foreign nationals must apply for expatriate quota positions from the FMI. Additionally, employers in the oil and gas sector are required to register with and obtain pre-approval from the NCDMB before applying to the FMI for the expatriate quota positions.¹³

For companies coming into Nigeria to carry on business, the Federal Government welcomes both FDI and Foreign Portfolio Investment (FPI). The Companies and Allied Matters Act (CAMA 2020) provides that "every foreign company which before or after the commencement of the Act was incorporated outside Nigeria and having the intention of carrying on business in Nigeria, must take all steps necessary to obtain incorporation as a separate entity in Nigeria for the purpose, but until so incorporated, the foreign company shall not carry on business in Nigeria or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than the receipt of notices and other documents, as matters preliminary to incorporation under this Act".¹⁴

Foreign investors or offshore companies can hold 100% equity stake in a Nigerian company.¹⁵ However, a foreign company wishing to set up business operations or carry-on business in Nigeria should take all steps necessary to obtain incorporation of the Nigerian subsidiary as a separate entity in Nigeria for that purpose. Until so incorporated, the foreign company may not carry-on business in Nigeria or exercise any of the powers of a registered company.¹⁶ From the decision of the apex court in CITEC INT'L ESTATES LTD v. EDICOMISA INT'L INC & ASSOCIATES,¹⁷ it is not in any dispute that the law as at today is that a foreign company cannot legally do business in Nigeria without first acquiring the garb of incorporation. The illegality of the transaction/business so entered by an unregistered foreign company would stand as a bar from the enforceability of the contract. This bar, it is important to note, is limited to enforceability of the contract, and does not generally extend to the legal capacity of a foreign company to sue and be sued in Nigeria.¹⁸

Nigeria's Visa Policy¹⁹

In a bid to expand its international frontiers, Nigeria embraced a liberalised and investment friendly immigration policy by implementing seventy-nine (79) classes of Visa, which include health, education, business, aviation, religion, security, intelligence, diplomacy, trade, investment, tourism and manufacturing are among the categories included.²⁰ The categories of visas in Nigeria are broadly categorised into Short Visit Visa ("SVV"), Temporary Resident Visa ("TRV") and Permanent Resident Visa ("PRV"). SVV includes twenty-eight (28) different classes of visa, TRV includes thirty-six (36) classes of visa and PRV includes fifteen (15) classes of visa.

This policy is geared towards the attraction of investment, innovation, specialized skills and knowledge from abroad for the purpose of increasing its revenue, enlarging the Nigerian economy, and boosting tourism without compromising national security. It further aims to achieve African integration by the introduction of visas on arrival for short visits to Nigeria for holders of passports of African Union countries.

Nigeria has exempted the following countries from acquiring a Visa prior to entry based on the Economic Community of West African States ("ECOWAS") Free Movement Protocol.²¹ The countries that enjoy this exemption include; Benin, Burkina Faso, Cape Verde, Cote d'Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Senegal, Sierra Leone, Togo. The aforementioned countries only require the relevant travel documents and a fulfilment of the other condition(s) precedent to enter into Nigeria. However, it is necessary to obtain Residence Permit to obtain employment or establish a business in the country.

Similarly, based on a bilateral Visa Abolition Agreement entered into with Cameroon and Chad, citizens of Cameroon and Chad are allowed to travel to Nigeria for short visits without obtaining a Nigerian Visa, but such citizens must obtain relevant visa for employment or business purposes.²²

Taxation Involved in Corporate Immigration

Foreign companies that are incorporated in Nigeria are referred to as Nigerian Companies and they have an obligation to pay taxes which are regulated by several laws such as the Companies Income Tax Act, 2011, the Value Added Tax Act,²³ the Finance Act 2019²⁴ and the Finance Act 2020.²⁵ Thus, the taxes levied upon companies include companies income tax ("CIT"), value added tax ("VAT"), withholding tax ("WHT"), tertiary education tax ("TET"), capital gains tax ("CGT").

Expatriates also have an obligation to pay taxes, and such is regulated by the Personal Income Tax (Amendment) Act, 2011.²⁶ Although there are no particular provisions in the Act that relate to expatriates, there are provisions that relate to foreigners who are deemed resident in Nigeria, and this is applicable to both local and expatriate employees in Nigeria.²⁷

Initially, the concept of residence determined the extent to which the income of a company was liable to tax in Nigeria. However, with the introduction of the Finance Act, 2019 and issuance of the Companies Income Tax (Significant Economic Presence) Order 2020,²⁸ the profits of non-resident companies derived in Nigeria, accruing from undertaking activities that include operations in Nigeria's digital economy, or provision of technical, management, consultancy, or professional services in Nigeria are taxable, provided such company has significant economic presence in Nigeria.²⁹ Nonetheless, an employee is regarded as resident in Nigeria throughout an assessment year, if he is domiciled in Nigeria for a period of 183 days or more in any 12-month period. However, expatriates who have a permanent residence permit in Nigeria are liable to tax in Nigeria even if they spend less than 183 days in Nigeria.³⁰

Conclusion

Corporate migration is now more rampant in this 21^st century. With the enactment of the Finance Act 2019 and 2020 in Nigeria, companies need not have physical presence in Nigeria to migrate to Nigeria. The consideration of digital services as a basis for regulatory oversight i.e., taxation, has put more corporate immigrants under the ambit of Nigeria's legal framework and regulatory oversight. Therefore, before a company decides to engage in business dealings or establish its presence physically or remotely in Nigeria (as well as in any other country), such company must examine the laws, regulations and policies of the country, and ensure it has the ability to comply with applicable regulatory requirements.

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Footnotes

1. ICLG TO: CORPORATE IMMIGRATION 2019 Micha-Rose Emmett, "The International Comparative Legal Guide to: Corporate Immigration 2019" (Global Legal Group Ltd, London 2019) p 5.

2. "Foreign Direct Investment (FDI) in Nigeria", available at https://www.nordeatrade.com/en/explore-new-market/nigeria/investment#:~:text=FDI%20in%20Figures&text=According%20to%20the%20UNCTAD%202020,98%2C6%20billion%20in%202019, accessed on 23 October 2021.

3. "World Investment Report", 2020 available at https://unctad.org/en/PublicationsLibrary/wir2020_en.pdf, accessed on 23 October 2021.

4. "Nigeria attracts $2.6bn FDI in 2020 amid global downturn", available at https://guardian.ng/business-services/nigeria-attracts-2-6bn-fdi-in-2020-amid-global-downturn/ accessed on 19 October 2021.

5. "Nairametrics", available at https://nairametrics.com/2021/08/02/foreign-direct-investment-into-nigeria-slumps-to-its-lowest-in-11-years/, accessed on 19 November 2021.

6. Act No. 8 of 2015.

7. Dayo Adu and Omolola Ahmed, "Nigeria: Corporate Immigration 2019" available at https://iclg.com/practice-areas/corporate-immigration-laws-and-regulations/nigeria, accessed 27 October 2021.

8. Adekemi Sijuwade, "The Corporate Immigration Review, Edition 9", https://thelawreviews.co.uk/edition/the-corporate-immigration-review-edition-9/1194476/nigeria, accessed 27 October 2021.

9. Part V, VII, VIII of the Immigration Act, 2015 (Act No. 8 of 2015).

10. Kunle Obebe "Corporate Immigration in Nigeria", available at https://www.lexology.com/library/detail.aspx?g=dd5ae411-3a0e-4a58-84f1-5c8ab2b2fe5e, accessed 2 November 2021.

11. "Guide to Business in Nigeria", http://www.nigeria-law.org/BusinessInNigeria.htm, accessed 2 November 2021.

12. Ibid.

13. Dayo Adu and Omolola Ahmed, "Nigeria: Corporate Immigration 2019", https://iclg.com/practice-areas/corporate-immigration-laws-and-regulations/nigeria, accessed 27 October 2021.

14. Section 78, Companies and Allied Matters Act, CAMA 2020.

15. Section 18, CAMA 2020.

16. Lexartifex LLP, "Doing Business in Nigeria: How Foreign Companies and Offshore Investors Can Establish in Nigeria", http://www.lexartifexllp.com/doing-business-in-nigeria/, accessed 2 November 2021.

17. See CITEC INT'L ESTATES LTV. v. EDICOMSA INT'L INC & ASSOCIATES (2018) 3 NWLR (Pt.1606) 332 at 355, paras C-D; 367 para C-D.

18. Abdulkabir Badmos, "Foreign Companies Doing Business In Nigeria: Has The Decision In CITEC INT'L ESTATES LTD V. INT'L INC & ASSOCIATES Sounded A Final Death Knell?", available at https://www.mondaq.com/nigeria/trials-appeals-compensation/1021094/foreign-companies-doing-business-in-nigeria-has-the-decision-in-citec-int39l-estates-ltd-v-int39l-inc-associates-sounded-a-final-death-knell-abdulkabir-badmos, accessed on 1 December 2021.

19. Nigeria Visa Policy, available at https://www.mondaq.com/nigeria/trials-appeals-compensation/1021094/foreign-companies-doing-business-in-nigeria-has-the-decision-in-citec-int39l-estates-ltd-v-int39l-inc-associates-sounded-a-final-death-knell-abdulkabir-badmos, accessed on 2 December 2021.

20. Anthony Ailemen and Segun Adams, "Nigeria unveils new visa policy to improve business environment, attract FDI" (Business Day, 5 February 2020), https://businessday.ng/exclusives/article/nigeria-unveils-new-visa-policy-to-improve-business-environment-attract-fdi/, accessed 17 October 2021.

21. Economic Community of West African States (ECOWAS), Protocol Relating to Free Movement of Persons, Residence and Establishment, 29 May 1979, A/P 1/5/79, available at https://www.refworld.org/docid/492187502.html, accessed 30 November 2021.

22. Supra, note 18 at p. 10.

23. CAP. V1 LFN 2004.

24. Finance Act 2019, available at https://www.budgetoffice.gov.ng/index.php/2020-finance-act?task=document.viewdoc&id=791, accessed on 23 September 2021.

25. Finance Act, 2020 available at https://pwcnigeria.typepad.com/files/finance-act-2020-official-gazette.pdf, accessed on 2 December 2021.

26. Personal Income Tax (Amendment) Act, 2011 available at http://admin.theiguides.org/Media/Documents/PITA-Ammendment.pdf, accessed on 2 December 2021

27. See Section 3(b), 4(a), 31, Personal Income Tax (Amendment) Act, 2011.

28. CAP. C21, LFN, 2004 available at https://www.firs.gov.ng/wp-content/uploads/2021/07/significant-economic-presence-order-2020.pdf, accessed on 2 December 2021.

29. See Section 4 of the Finance Act and Section 13 of the Companies Income Tax Act, Cap C21, LFN 2004.

30. Gbenga Biobaku and Yetunde Ogun, "Taxation of Expatriates in Nigeria" http://www.gbc-law.com/assets/publications/TAXATION_OF_EXPATRIATES_IN_NIGERIA.pdf, accessed 3 November 2021.

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