An Overview of Executive Order N0. 5 preventing foreigners from obtaining jobs Nigerians can do

An Overview of Executive Order N0. 5 preventing foreigners from obtaining jobs Nigerians can do

An Executive Order (EO) is a rule or an
official statement issued by the President to an executive branch of the
government about how the federal agencies are to use their resources.
Executive Orders have the force of law.

The issuance of an EO by the President
is not equivalent to the creation of a new law or the performance of
legislative functions; it is the instruction by the President to the government
on how the latter is to work within the parameters that have already been set
out through legislation and the Constitution.

The President’s Executive Orders are
published (or “gazetted”) in the government’s official daily journal and,
although they are considered binding, they remain subject to legal review.

In an effort to reform the administrative and
regulatory environment for both private and public-sector players, the Vice
President, Professor Yemi Osinbajo, in his capacity as the Acting President at
the time, signed the initial three EO’s on Thursday, May 18, 2017 which focus

1.     The promotion of
transparency and efficiency in the business environment designed to facilitate
the ease of doing business in the country, (E01)

2.     Support for local
content in public procurement by the federal government (EO2), and

3.      Timely submission of annual budgetary
estimates by all statutory and non-statutory agencies, including companies
owned by the Federal Government (E03).

In addition, on Thursday, June 29, 2017,
Professor Yemi Osinbajo signed EO4 on the Voluntary Assets and Income
Declaration Scheme, which offers tax amnesty, until March 31, 2018, to tax
payers who have defaulted in their tax obligations in the past.


With the expectation that it will complement
the earlier four EO’s in effectively placing the country on the path to
becoming a more advanced economy by promoting Made in Nigeria Goods and
Services, the new EO5 was signed by President Muhammadu Buhari on Friday,
February 2, 2018, in a proclamation entitled “Presidential Executive Order
for Planning and Execution of Projects, Promotion of Nigerian Content in
Contracts and Science, Engineering and Technology.’’

The EO, which took effect immediately
following its signing, makes specific directives which include:

All Ministries, Departments and Agencies
(MDAs) of the government are directed to engage indigenous professionals in the
planning, design and execution of national security projects, and to maximize
domestic capacity in all contracts and transactions with science, engineering
and technology components.

All procuring authorities must give
preference to Nigerian companies and firms in the award of contracts in line
with the Public Procurement Act, 2007. That is, procuring entities can only
give preference to foreign companies and firms where it is certified by the
relevant authority that expertise is lacking in Nigeria, and such foreign
company and firm must have a demonstrable and verifiable plan for indigenous
capacity development, prior to the award of such contracts.

Nigerian companies or firms duly registered
in accordance with the laws of Nigeria with current practicing licenses must
take the lead in any consultancy services involving joint venture relationships
and agreements relating to law, engineering, ICT, architecture, procurement,
quantity surveying, etc.

MDAs must ensure that before the award of any
contract, Nigerian counterpart staff are engaged from the beginning to the end
of the project and must also adopt local technologies that meet standards set
by the National Office for Technology Acquisition (“NOTAP”) or other relevant
local authorities.

The Ministry of Interior is prohibited from
giving visas to foreign workers whose skills are readily available in Nigeria.

MDAs must ensure that all professionals practicing
in the country are duly registered with the appropriate regulatory bodies in
Nigeria and that all foreign professional certificates are domesticated with
the relevant professional bodies before being considered for any contract award
or employment in Nigeria. 

Agreements involving any joint venture or
public private partnership between a foreign firm and a Nigerian firm, for
technology acquisition or otherwise, must be registered with the NOTAP in
accordance with the provisions of the NOTAP Act, before such contracts are
signed by the MDAs;

A Nigerian company or firm may not be
disqualified from a contract award by any MDA based on its year of
incorporation except on the basis of lack of qualification, competence and
experience of the management in the execution of similar contracts;

The NOTAP is required to develop, maintain
and regularly update a database of Nigerians with expertise in science,
engineering, technology and other fields. It is this database that the Ministry
of Interior must consult in determining the availability of local skilled
manpower in science, technology and innovation prior to the grant of an
employment contract to a foreigner under Nigeria’s Expatriate Quota (EQ)

Where qualifications and competence of
Nigerians are either unavailable or unascertainable, the Ministry of Interior
must ensure that any EQs for projects, contracts or programmes are granted in
line with the provisions of the Immigration Act and other relevant laws and may
create special immigration classifications to encourage foreign expatriates
(particularly from African countries) to reside and work in Nigeria for the
purpose of sharing knowledge with Nigerian professionals.

The Federal Inland Revenue Service and the
Ministry of Finance are required to ensure that tax incentives are granted to
existing machine tools companies (including foundry, machine shop, forge shop,
and indigenous artisans) to boost local production of their products while tax
incentives may be granted to SMEs and foreign firms for the utilization of
local raw materials that are authenticated by the Raw Materials Research and
Development Council.


The main objectives of the EO5 are to harness
domestic talents and develop indigenous capacity in science and engineering for
the promotion of technological innovation needed to drive national
competitiveness, productivity and economic activities, which will ultimately
enhance the achievement of the nation’s development goals across all sectors of
the economy.

Without doubt the EO5 will boost domestic
production of goods and thus create jobs and improve investment in science,
technology and engineering in Nigeria.

However, with the signing of the EO,
companies that intend to employ foreign nationals on long-term assignments and
require the grant of EQs will undergo additional rigorous scrutiny. Such
companies will be required to employ Nigerians to understudy their foreign
experts to enable Nigerians to acquire the requisite skills for the eventual
takeover of the expatriate positions. Although this has always been the case,
with the EO5 having the force of law, there will be higher scrutiny regarding
the implementation of this requirement.

While the signing of the EO5 is a positive
development for Nigeria and the West African economy, there may be a need to
incorporate the provisions of the EO5 in an Executive Bill to be enacted into
law by the National Assembly in the near future in order to achieve maximum

Legal Practitioner
Source: LinkedIn

What You Need To Know about Expatriate Employment In Nigeria | Busayo Adedeji

What You Need To Know about Expatriate Employment In Nigeria | Busayo Adedeji


With approximately 188 million
inhabitants, Nigeria is the most populous country in Africa and the seventh
most populous country in the world. The country has one of the largest
population of youth in the world. In 2014, Nigeria overtook South Africa
to become Africa’s largest economy and in 2015, Nigeria was said to be the
world’s 20th largest economy, worth more than $500 billion and $1 trillion in
terms of nominal GDP and purchasing power parity respectively.

With the stats detailed above, it
is no wonder the country has become a first port of call for Foreign Direct
Investors looking to invest in Africa. This article seeks to examine and point
out some salient facts every employer of Expatriate Employee must know while
operating in Nigeria. These industry practices and regulations apply to both
local and foreign companies.
Permits and Licences
Every company desirous of
employing Foreign Nationals (“FN”) in Nigeria must
have first obtained an Expatriate Quota (“EQ”) from the
Federal Ministry of Interior (“FMI”). The EQ is a
condition precedent that must be fulfilled by any company (local or foreign)
employing FNs in Nigeria. The document details out the positions in the company
approved by FMI to be filled by FNs. It is important to state that the position
to be occupied by every FN must correspond with his qualifications. A concise
illustration of this point is that, it is very likely that The Nigeria
Immigration Service (“NIS”) would reject an application
for the resident/work permit of a FN who is an accountant and who is expected
to occupy the position of “lead engineer” in a company.
It is also expedient to note
that, flowing from a recently issued directive, companies operating in specific
sectors are required to join certain professional bodies before employing FNs.
E.g., companies operating in the engineering sector are required to register
with Council for The Regulation of Engineering in Nigeria.
For any FN to enter into Nigeria
for employment related purposes, particularly on a long-term basis, the said FN
must have obtained a Subject to Regularization (“STR”) visa from his
country of residence abroad. Upon arrival in Nigeria the FN is expected to
apply for a Combined Expatriate Resident Permit and Aliens Card (“CERPAC”) within 90 days of arrival. The application for
STR visa and CERPAC is to be made by the employer on behalf of the FN. The
employer must also undertake to bear full immigration responsibility on behalf
of the FN.
Taxation of Expatriates
Pursuant to the Personal Income
Act, an employee is said to be resident in Nigeria if he is domiciled in
Nigeria for a period of 183 days or more in any 12-month period. Expatriates
who have obtained resident permit in Nigeria are liable to personal income tax.
In instances where the relevant
Inland Revenue Service (“IRS”) is of the view
that no or insufficient tax has been paid, the IRS has the power to assess
individual FNs on Deemed Income Assessment basis. When this happens, the onus
is on the employer to prove that the tax paid is sufficient by providing:
of Employment of the Expatriate;
passport of the Expatriate;
Quota Position granted to the company; and
quota returns for the company.
Expatriate Pensions
Though section 2(1) of the
Pensions Reform Act 2014 provides that the act shall apply to every employment
in Nigeria, the Guidelines for Cross Border Arrangements under the Pension
Reform Act provides that “any foreign employee of a company registered in Nigeria
shall, at his/her discretion, join the contributory
pension scheme, without considering whether he/she has a pension arrangement in
his/her home country.” This means that the FN may maintain a
Pension Fund Administrator (“PFA”) in his home country or elect to join a
Nigerian PFA.
Change of Employment
The immigration regime in Nigeria
allows for change of employment of FNs already employed in Nigeria by a
previous company to another company. In instances of such, the consent of the
comptroller of immigration must be sought and obtained prior to changing such
employment. The previous employer is also required to issue a letter of no
objection to the employment of the FN by the new company.
End of Expatriate Employment
Upon completion or termination of
an FN employment in Nigeria, the employer is expected to formally inform the
Comptroller General of the NIS of this fact. The reason of the aforesaid stems
from the need for NIS to be able to ascertain at any given time the number of
 FN’s employed in the country, to keep records and also release the
employer from immigration responsibility as it concerns the exited FN.

Busayo Adedeji is an associate at
Bloomfield Law Practice. He has experience assisting clients on regulatory
compliance and general commercial law issues.