When Can a Work Permit Be Cancelled?

Part VIII of the Employment of Non-Citizens Act 2007 deals with permits ending early. Two sections make a permit fall away automatically; one gives the Secretary a power to cancel; and one imposes a duty on the employer to dismiss.

Sections 29 and 30 — when a permit becomes invalid by itself

Neither requires a decision by anyone. The permit is tied to a live entry permit and a live employment relationship; if either goes, the work permit goes with it. That is also why section 10(2) makes a permit non-transferable as to employer, non-citizen and occupation — ending the job ends the permit, and a new job needs a new permit.

Section 31(1) — the four grounds for cancellation

Ground (b) is wider than it looks. Under section 54(2), compliance with any other law applying to the employer and the non-citizen is deemed to be a condition of every work permit. A breach of the Employment Act (Chapter 373), of migration law, or of tax or professional registration requirements is therefore capable of being a contravention of a permit condition.

Note also that ground (a) attaches to the application, so a misstatement about qualifications, experience or registration remains a live risk long after the permit is granted.

Section 31(2) and (3) — notice and representations

This is a statutory show-cause procedure, and it reflects section 59 of the Constitution — the principles of natural justice, whose minimum requirement is the duty to act fairly and, in principle, to be seen to act fairly. Note that the notice goes to both the employer and the non-citizen, and both may respond.

Section 31(4) — the national interest exception

The proviso is unusual and important: the Act writes the standard of review into the section itself. A national interest cancellation that is biased, arbitrary or capricious is outside the power. That sits alongside section 41 of the Constitution, which renders unlawful an act that is harsh or oppressive, disproportionate, or otherwise not reasonably justifiable in a democratic society, even if specifically authorised by law.

Section 31(5) to (8) — the appeal

Unlike the appeal against refusal of a grant or a renewal, which belongs to the employer or self-employed non-citizen, the cancellation appeal is available to the non-citizen and employer.

Note too that section 53(2) provides that the Secretary shall not delegate the power under Part VIII to cancel a work permit. Cancellation is reserved to the Secretary personally.

Section 33 — varying, revoking or adding conditions

The Secretary may, by written notice at any time, vary or revoke any conditions, or impose new or additional conditions. The same procedure applies: notice of the intention and the reasons, 14 days for written representations, and the Secretary must consider them. An aggrieved employer or self-employed non-citizen may appeal to the Minister within 14 days, and the Minister decides within 28 days with written reasons.

Section 32 — the employer must terminate

The employer must then inform the Secretary in writing of the termination within 14 days of it (s 32(2)).

The remedy against the cancellation is the appeal to the Minister, not the industrial process. Note, however, that the termination does not extinguish money already owed under the Employment Act — wages, accrued leave and other entitlements — nor the employer’s repatriation liability, which under section 40(g) is expressly triggered by cancellation of the work permit under section 31.

After a cancellation or termination

1. Return the work permit and card to the Secretary within 14 days — section 36, fine up to K1,000.00 for failing to.
2. Update the employer’s register with the notice of cancellation — section 39(2)(b).
3. Notify the Secretary of the termination within 14 days — section 32(2).
4. Arrange repatriation to the place of origin, and lodge the section 44 statement of the arrangements.
5. Pay out everything owed under the Employment Act — see final pay.
6. Check the entry permit position under the Migration Act.