Work permits for foreign nationals in Kenya are regulated under the Kenya Citizenship and Immigration Act (No 12 of 2011). While work permits are issued pursuant to the professional and academic strengths of the foreign employee, permits are tied to a specific employer. Section 41 of the Act provides for factors that may invalidate a work permit. Significant among them are: ceasing to engage in the same employment; and engaging in employment other than the employment with respect to which the permit was issued.
It is not always that a foreign national wants to stick to the same employer for the period of the work permit. Sometimes more competitive offers and opportunities present. This poses practical challenges to a foreign national wishing to change employment within Kenya since they have to obtain a new work permit in favour of the new employer. It is even more difficult when the former employer does not collaborate or where the foreign national left employment in bad terms. This is because for one to make an application for a new work permit, the existing permit must be cancelled by the former employer writing a cancellation letter to the immigration department.
Changing Employment in Kenya as an Expatriate
In the event the former employer fails to collaborate causing the foreign national difficulties in obtaining a new work permit, it is imperative for them to know that the law Under Regulation 22 places an obligation upon the employer to report cessation of employment within 15 days. Some employers withhold the cancellation for the purpose of frustrating the employee’s further stay in the country without knowing that they are themselves performing an illegality for which they could be penalized.
Another practical problem in changing work permit by a foreign national in Kenya manifests by way of a “legal vacuum” in that once a cancellation letter is presented and the new special pass or work permit application is yet to be approved, arguably the foreign national remains in the new employment “illegally”, at least as per the letter of the law.
However, given that the only alternative is to cease working or even leave the country pending the issuance of the new documents which is not always practical or even economical, the courts in some instances have halted deportation where it is proven that the processing of a new work permit is in progress. This however is a loose end that has not been legally tied yet and therefore still presents a legal exposure to foreign nationals working in Kenya.
The advice to foreign nationals is to submit the cancellation letter concurrently with the application for a new special pass under the new employer which currently takes roughly 4-7 days to get an approval. They can then follow it with a work permit application which will take roughly 1-2 months to be approved. This minimizes on legal exposure and the risk of falling foul with the law leading to deportation.
