COMPLIANCE ISSUES CONCERNING THE EMPLOYMENT OF NON-CITIZENS IN TANZANIA
- Filing of Returns on Employment of Non-Citizens
- Exemption of application of provisions of the Non-Citizens Employment (Regulations) Act, 2015
- Adherence to Non-citizens employees versus local ratio
- Compliance issues on bulk recruitment
- Submission of Succession Plan
- Report on Cessation of Employment or engagement of non-citizen employee(s)
- Surrender of Work permit prior to departure of a non-citizen
An Employer of non-citizens in the United Republic of Tanzania must adhere to substantive procedure when dealing with non-citizen employees to avoid penalties and other adverse repercussions. Employers at times focus on economic gains and profit margins while forgetting about the compliance issues contained in the non-citizens employment laws which play an integral part of the Tanzanian non-citizens employment law regime. An employer of a non-citizen must comply with all the legislation governing the employment of non-citizens under the Non-Citizens Employment (Regulations) Act, 2015 (herein referred to as “the Act”) and The Non-Citizens Employments Regulations (herein referred to as the Regulations). If you employ foreigners or are setting up a business that will employ foreigners you need to be familiar and aware of the rules that apply to the employer itself and their workers enunciated under the Act and the Regulations.
Among its other areas of specialization, Breakthrough Attorneys’ zeroes in on Tanzania immigration and relocation challenges and Support Services with an unbiased focus on the challenges related to the interplay between frequent changes in the legislation, Regulations and institutional procedural rules(Some of them even uncodified). We help employers in Tanzania and prospective investors by addressing the many questions and issues arising from the changes in the non-citizens employment rules and related legislation.
On that note therefore, this article aims at shading a light on various compliance issues that an employer of non-citizen(s) should keep in mind and adhere to when engaging a non-citizen.
1.0 Filing of Returns on Employment of Non-Citizens
An employer of Non-citizens in Tanzania is obliged to submit Returns of Non-citizens at the Ministry of Labour and Employment matters every year. It is a requirement under the Act that the returns should be submitted between 30th June and 31st December every year. The returns should be submitted in forms specifically identified by the Ministry and should be submitted in duplicate. The returns basically gives out details to the Labour Commissioner on the number of non-citizens working in the employer company or institution as well as the number of non-citizens employees who have left the employer within the first six months of every year.
2.0 Exemption of Application of Provisions of the Act and its Regulations
The Act and its Regulation contains limitations that are pegged to work permits. Limitations range from the number of times a work permit may be renewed, bulk recruitment and so forth. Despite these limitations, an employer can still seek for exemption of application of some of the provisions of the Act and Regulation from the Minister responsible for Labour if there are circumstances that justify that exemption. According to the Act and Regulation, the circumstances that qualifies one to be granted that exemption includes;
i. the value of the foreign investor to Tanzania’s economy in terms of income from tax, job creation and transfer of technology,
ii.the existence of a valid marriage between the non-citizen and a Tanzanian (the marriage which must be in subsistence for not less than three (3) years and
iii.the failure by the employer to obtain a local employee(s) despite the employer’s effort in searching for the qualified local for the position and complexity of technology employed by the employer’s entity.
3.0 Adherence to the Ratio Between Non-Citizens Employees to Local Employees’
An Employer should be careful when it comes to the number of employed non-citizens with regards to the ratio of non-citizens to locals in his entity/institution. It is trite under the Regulations that the number of foreign employees in Tanzania must not exceed the number of domestic employees. The regulation forces the employer to adhere to the ratio of citizens and non-citizens employed. According to the Regulations, the work permits will be issued at the ration of 10 local employees to one non-citizen employee.
4.0 Compliance Issues on Bulk Recruitment of Non-Citizen Employees
Despite the restrictions on recruitment of a huge number of non-citizens by Employees in Tanzania, the Regulations provides a leeway to employers to recruit non-citizens in bulk as long as there is adherence to the conditions provided for such recruitment. Under the Regulations, an employer who is desirous to recruit non-citizens in bulk must first apply for authorization to do so from the Labour Commissioner. The Labour Commissioner will base the decision to issue that authorization or deny basing on the reason provided by the employer resorting to bulk recruitment and effort made by employer to seek qualified locals for the position which was not successful. The Labour Commissioner will issue her approval for recruitment of specified number of employees, the number which shall adhere to the ratio of ten (10) local employee to one (1) non-citizen employees.
5.0 Submission of Succession Plan
For every permit renewal application in Tanzanian law, an employer must submit a Succession Plan in tandem with the Work permit renewal application giving out details of the non-citizen employee who is seeking a permit renewal as well as the local who will take over the position of the non-citizen when his permit expires. The essence behind this requirement is to make sure that an expat should transfer his skills to locals to local employees.
6.0 Report on Cessation of Employment or Engagement of Non-Citizen Employee(s)
The employer is obliged under the law to report to the Labour Commission whenever a non-citizen employee ceases to engage in the position subject to the work permit. The report on such cessation of employment must be made fourteen (14) days from the date of such cessation and must be in writing. The employer is further obliged to report in writing to the Labour Commissioner when the non-citizen who has been issued with the work permit fails to enter Tanzania within the period of ninety (90) days from the date of issuance of his work permit.
7.0 Surrender of Work and Residence Permit Prior to Departure of a Non-Citizen
Whenever a non-citizen employee ceases to engage in the position subject to a work permit and he is exiting Tanzania, the employer is obliged to surrender his work permit to the Labour Commissioner for cancellation fourteen (14) days prior to departure of the non-citizen employee from the country. The same applies to residence permit as residence permits must be surrendered once it expires or when the holder ceases to engage in employment to which the residence permit was issued for. It should be noted that, once a residence permit expires, the holder has a grace period of one month to stay in the country to wind up with work related matters.
8.0 Granting Access to Labour and Immigration Authorities to places of work
The employer is obliged by the Labour and Immigration laws to grant access to Labour and Immigration officers to enter the place of work for purpose of ensuring adherence with the Immigration laws. The officers are entitled under the law to be granted access to enter into working places or residence of a holder of work and residence permit to ensure adherence to labour laws via inspection of the place and documents.
NB: This article is based on compliance matters under the Work permit field of laws and it does not take away the obligation of the employer to comply with the immigration laws as well i.e. residence permit. These compliance matters under the Immigration laws are subject to another article.
This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, Breakthrough Attorneys, its members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it.