Part IX of the Employment of Non-Citizens Act 2007 creates two documents, two registers, and four offences.
Section 34 — the work permit and the work permit card
(1) On granting an application under Parts VI and VII, the Secretary shall (a) issue a work permit, in the prescribed form, to the applicant; and (b) issue a work permit card, in the prescribed form, to the non-citizen.
(2) For a self-employed non-citizen, the Secretary issues both the permit and the card to that person.
The split matters. The permit belongs with the employer, which is the applicant; the card is carried by the worker. Both are needed, and each is produced by a different person.
Sections 35 and 36 — production and return
| Section | Obligation | Penalty for failure |
|---|---|---|
| 35 | The permit and card shall be produced by the employer, the non-citizen employee or the self-employed non-citizen when required by an authorised officer | Fine up to K1,000.00 |
| 36 | If the permit is cancelled or the employment is terminated, the employer and the non-citizen (or the self-employed non-citizen) shall return the permit or card to the Secretary within 14 days | Fine up to K1,000.00 |
Not from a reminder. And termination for any reason makes the permit invalid under section 30, so the return obligation is triggered by a resignation as much as by a dismissal.
These are two of the five offences for which the Secretary may serve an infringement notice under section 58 — the others being sections 6, 11 and 39.
Section 37 — the Register of Work Permits
(1) The Secretary shall keep, or cause to be kept, a register known as the Register of Work Permits, into which shall be entered particulars of (a) every permit and card issued under section 34; (b) every permit cancelled under Part VIII; and (c) such other particulars as are prescribed.
(2) The Register, or a document purporting to be, or to be a copy of or an extract from it, is prima facie evidence of the matters contained in it.
Subsection (2) is a practical evidential provision: in a prosecution or a dispute, an extract from the Register proves what it says unless displaced. Compare section 59(3), under which written evidence purporting to be signed by the Secretary authorising an officer to institute proceedings is admissible and shall be accepted as evidence of that authority.
Section 38 — duplicates
Where the Secretary is satisfied that a permit or card has been lost, defaced or destroyed, a duplicate may be issued (a) on payment of a prescribed fee and (b) where the document has been defaced, on surrender of it. A duplicate is signed by the Secretary and endorsed as a duplicate.
Report a lost card promptly. Section 35 requires production on demand, and a fine of up to K1,000.00 follows a failure — a duplicate is the answer.
Section 39 — the employer’s register
(1) Every employer shall keep, in the prescribed manner, at the employer’s sole or principal place of business, a register of non-citizen employees in respect of whom a work permit has been granted.
(2) The register shall contain (a) all current work permits granted in respect of non-citizen employees employed by the employer; (b) any notice of cancellation of a work permit under Part VIII; and (c) any other prescribed information.
(3) The Secretary or an authorised officer may at any reasonable time enter any premises and inspect the employer’s register.
(4) A person who without reasonable excuse (proof of which is on the person) fails to produce the register when required is guilty of an offence. Penalty: a fine not exceeding K1,000.00.
Section 39(4) places the burden of proving a reasonable excuse on the person. “The register is at another office” is unlikely to discharge it, because section 39(1) requires the register to be kept at the sole or principal place of business.
Section 48 — what an authorised officer may do
(a) enter and inspect any premises, place, aircraft, vehicle or vessel on or in which a non-citizen is, or is reasonably believed to be, employed;
(b) examine any work done and inspect machinery, equipment and facilities to ascertain compliance;
(c) require any person to give information or answer questions relating to the employment;
(d) require production of any register, record, notice, list, contract or other document (including a passport), and an explanation of any entry; and
(e) examine and copy any such document.
The officer must, when requested, produce written evidence of appointment (s 48(2)), and may be accompanied by an interpreter where necessary (s 48(3)). Officers are appointed by the Secretary by National Gazette notice under section 47, and are protected by section 49 except where damage is caused maliciously or without reasonable cause.
Refusing or failing without reasonable cause (proof on the person) to give information or produce documents; giving information known to be false in any material particular; hindering or obstructing an authorised officer; or impersonating one.
Penalty: a fine not exceeding K5,000.00 or imprisonment for a term not exceeding six months.
Records required by the Employment Act too
Where the non-citizen is employed under a contract of service, the record-keeping duties of the Employment Act (Chapter 373) apply as well — see records an employer must keep. In particular: the wages record under section 83 with the reason for every deduction, the pay statement under section 82, the overtime records under section 57, and the copy of the Act required on site under section 148A. Section 54(2) of the 2007 Act deems compliance with those laws to be a condition of every work permit.
A compliant file
- The employer’s register, at the sole or principal place of business, in the prescribed manner.
- All current work permits filed in it, plus any cancellation notices.
- A copy of each work permit card, and a note of where the original is held by the worker.
- Diary entries for every expiry, and for the 14-day return deadline after any cancellation or termination.
- Evidence supporting each application — advertising, qualifications, registration, language.
- The place of origin notification for each worker, for repatriation.
- Employment Act records for the same workers.
- A named person responsible for producing the register on demand.
Sources
- Employment of Non-Citizens Act 2007 — ss 6, 11, 30, 34–39, 44, 47–49, 54, 58, 59
- Employment Act (Chapter 373) — ss 57, 82, 83, 148A
- Migration Act (Chapter 16)
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.