Expatriate Employment Levy

At a glance

• On 17 May 2023, the Federal Executive Council approved the Expatriate Employment Levy (EEL) regulation by the Federal Ministry of Interior proposing the imposition of a levy for companies employing non-Nigerians. The levy aims to balance the recognition of expatriate employment with the protection and development of local talent in the Nigerian labour market.
• The Ministry of Interior, on behalf of the Federal Government of Nigeria, issued the Expatriate Employment Levy Handbook (Handbook) on 27 February 2024, outlining the procedures for registration and payment of the EEL.
• The EEL applies to expatriate directors and employees who are employed for a period no less than 183 days in a fiscal year. The EEL payment is not applicable to all recognised personnel of diplomatic missions and government officials.
• Employers with foreign employees and directors must pay an annual levy of USD15,000 each for director and USD10,000 for other categories of employees’ expatriates annually.
• The EEL was expected to come into force on 15 March 2024, but implementation was suspended on 8 March 2024 for further discussions with the public and stakeholders.

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This article has been drafted for GENIE by Olajide Oyewole LLP.

About the EEL

The EEL is a government-mandated financial contribution that is imposed on employers in Nigeria who hire foreign workers. The duty aims to address socio-economic considerations by striking a balance between economic growth, social equity, and workforce development within the country. The EEL initiative, overseen by the Nigerian Immigration Service (NIS) and the Ministry for Internal Affairs was approved by the Federal Executive Council on 17 May 2023. It requires employers to pay a levy for hiring foreign workers, to foster the development of the local workforce and reduce reliance on overseas expertise.

Scope

The EEL applies to all employers in Nigeria including in the ICT, agriculture, oil & gas, telecommunication, banking and finance, maritime and shipping, and healthcare sectors who employ foreign workers.

The EEL applies to foreign workers who have been employed for a cumulative period of at least 183 days within a financial year. This includes those on temporary work permits (TWP) who are engaged in seasonal or short-term employment across different companies in Nigeria. The employer is responsible for paying the EEL.

In the Handbook, foreign workers are characterised as non-citizen or non-resident employees who fill Expatriate Quota roles (ie roles approved by the Ministry for expatriate employment) or are engaged under a TWP. A TWP is a single-entry visa valid for 60 days (two months), which can be extended in-country for an additional 30 days (one month). It is issued to applicants who will offer specialised services in Nigeria. These employees must be engaged for a cumulative period of 183 days from their entry date into Nigeria for their employment to fall under the purview of the EEL. Consequently, short-term hires may be exempt from the EEL.

The Handbook outlines the specific circumstances in which the EEL is applicable. While it does not directly state that companies must pay the EEL for foreign workers who are employed before the launch date, it imposes a penalty for failing to register these workers within 30 days. This implies that registration is necessary for current foreign employees. This is further confirmed by the notice issued jointly by the Ministry of Interior and the NIS which specifies a 30-day registration period, aligning with the Handbook's provisions.

All companies in Nigeria who employ foreign workers are required to pay the EEL. Employers of expatriates must pay the annual EEL of USD15,000 for each director in the organisation and USD10,000 for other foreign workers who are employed in Nigeria for a cumulative period of 183 days or more within a fiscal year.

Exemptions

The EEL payment is not applicable to all recognised personnel of diplomatic missions and government officials. It also does not extend to foreign workers engaged in short-term employment, that is, less than 183 days within a single fiscal year.

Responsibilities

The Handbook outlines the duties of the government, employers, and foreign workers. The government and its agencies are tasked with providing an online portal to facilitate levy payments, enforcing the EEL, and potentially conducting audits and verifying the information supplied by the employer.

Employers are required to keep precise records, report foreign employee’s information and make any alterations promptly, and adhere to payment deadlines. They might also consider providing in-house training for their Human Resources and payroll employees.

Foreign employees are required to furnish accurate information to both employers and the government to aid employers in meeting their obligations.

Enforcement

The NIS is primarily responsible for the implementation and enforcement of the EEL. Its responsibilities include:

• determining which foreign workers are covered by the EEL;
• enforcing the payment of the EEL in line with the Immigration Act 2015 and other applicable laws and regulations; and
• using the data generated from the EEL project for the enhancement of national security and economic development.

The EEL was expected to come into force on 15 March 2024. However, on 8 March 2024, the Federal Government announced a suspension of the proposed policy, pending additional discussions with stakeholders.

Penalties/Sanctions

Under Section 56(5) of the Immigration Act 2015, any entity (be it an individual or a corporation) that knowingly provides false information or makes a false representation to an immigration officer, or does not believe the information provided to be true, shall be subject to a penalty of either a five-year prison term, a fine of N1,000,000, or both.

The Handbook provides for the following sanctions and penalties as outlined in Regulation 52(6) of the Immigration Regulations 2017:

• Failure to file the application for EEL within 30 days attracts a fine of Three Million Naira (N3,000,000).
• Failure to register new employees within 30 days attracts a fine of Three Million Naira (N3,000,000).
• Falsification of information on EEL applications attracts a fine of Three Million Naira (N3,000,000).
• Failure to renew EEL (registration/approval of particular foreign worker within 30 days attracts a fine of Three Million Naira (N3,000,000).

Takeaways

The introduction of the EEL is seen as a potential incentive for employers to invest in local talent development. Although the implementation has been temporarily suspended for more stakeholder engagement following employer backlash, it signals the current government's intention to control and manage the engagement of foreign workers in view of the general public perception of the displacement of local workforce through the abuse of the expatriate work permit system.

Employers are encouraged to be aware of this new policy and reassess their employment strategies and manpower needs during the suspension period, in preparation for compliance once implementation commences. Given the widespread misuse of the expatriate quota system and the significant resources the NIS has invested in the EEL programme, it is our belief that implementation is inevitable.

There are, admittedly, some uncertainties in the implementation of the EEL, such as the timing of payment—whether it is due upon employment of the foreign worker or after they have resided in Nigeria for 183 days. It is anticipated that the Ministry of Interior and NIS will release more detailed information on the implementation in the forthcoming days and weeks. Furthermore, there are indications of upcoming consultations with stakeholders, which should help clarify these uncertainties prior to the implementation of the EEL.

It’s also crucial to note that the EEL adds to the financial obligations of employers, who currently bear costs associated with expatriate engagement, such as expatriate quota and visa fees. Employers also have the duty to maintain comprehensive records of foreign employees. They are required to provide updated information to government agencies within specified timeframes, promptly inform the government agencies of any changes in foreign employment circumstances and ensure that HR and Payroll teams receive adequate training to be fully informed about the EEL reporting requirements and compliance measures.

Further updates will be provided as the government continues discussion with stakeholders.

If you have further inquiries, please do not hesitate to contact us employment@olajideoyewole.com.