THE IMMIGRATION DIFFICULTIES OF FOREIGN COMPANY MANAGERS IN CAMEROON
The OHADA Uniform Act on Commercial Companies and Economic Interest Groups does not provide for the clear definition of company managers. However, it is generally accepted that the company (legal entity) cannot act directly. It is directed or represented by natural persons who enter into relations with third parties in the name of the company. A company cannot act without the intermediary of its representatives or company managers.
Company managers could thus be defined as those persons who run civil
and commercial companies, i.e. those who run a company as a master.
For this article, company managers will refer to Managers, General Managers,
General Directors, Chairperson Managing Directors and Presidents of corporate
entities.
Under the Cameroonian Labour Code, the abovementioned company
managers are not considered as employees. Under the OHADA Uniform Act on Commercial Companies and Economic
Interest Groups, they are considered as company agents (“mandataires sociaux”). For this reason, company managers are not
required/obliged to sign an employment contract with the company to carry out
their functions. They are simply appointed in the articles of association or a
subsequent instrument (minutes of the decision of shareholder(s)).
NB: the employment
contract should not be confused here with “regulated agreements” which are
agreements between a public limited company and any of its directors, general
managers or assistant general managers or any corporate body where one of the aforementioned
is the owner or has unlimited liability, is a manager,
director, managing director, assistant managing director, general manager or
assistant general manager.
These agreements
are subject to the prior authorization of the Board of Directors.
In a scenario where company managers are expatriates and have to immigrate to Cameroon to manage a company. It is not sufficient to name them in the articles of association or the minutes of a general meeting.
Surprisingly, one of the mandatory conditions for the immigration
process of foreign company managers to Cameroon is the requirement of an
employment contract approved by the Ministry of Employment. The why and how of
this requirement will be explained in the following points:
1. The provisions of the Immigration Laws
1.1.
The immigration law in Cameroon is Law No. 97/012 of 10
January 1997 on the conditions of entry, stay and exit of foreigners in
Cameroon. (hereinafter “the Immigration Law”)
This law has an implementing decree of 2007 amended by two other decrees of
2008 and 2016 : (The Decree N°2007/255/PM of 04 September 2007 amended by Decree N° 2008/052 of
30th January 2008 and Decree
N°2016/473 of 4 August 2016 to lay down the modalities for the implementation
of Law No. 97/012 of 10 January 1997 on the conditions of entry, stay and exit
of foreigners in Cameroon.). (hereinafter “the
Immigration Decree”).
1.2.
The Immigration Decree provides for four
different types of entry visas for expatriates wishing to enter the Republic of
Cameroon: transit visa, tourist visa, temporary
visa and long-stay visa.
· - The transit visa can only be issued for a maximum period of five days. (Article 21(2) of the Immigration Decree).
· - The tourist visa may be issued for a maximum period of 30 days. (Article
22(2) of the Immigration Decree).
· - The temporary visa can only be issued for a maximum period of three months. (Article 23 of the Immigration Decree).
· - The long-stay visa is issued to an expatriate who intends to stay in Cameroon for a period exceeding three months (article 24(1), Immigration Decree). However, its validity cannot exceed six months (article 24(2) of the Immigration Decree).
1.3.
Article 26 of the Immigration Decree provides that except for the long-stay
visas, no other visa shall give the right to exercise a lucrative or
professional activity, and the possibility to carry out studies in Cameroon.
Consequently, foreign company managers must obtain a long-stay
visa to exercise their functions in Cameroon.
2. Conditions for obtaining a long-stay visa for
professional activities in Cameroon.
2.1. According
to article 30 of the Immigration Decree, obtaining a long-stay visa as for the
exercise of professional activities is subject to the provision of the following:
- a passport valid for at
least six months;
- an air ticket or any
other valid transport ticket to Cameroon;
- international certificate
of compulsory vaccination;
- a guarantee of
repatriation;
- an employment contract
approved by the Minister of Employment for foreigners wishing to exercise a remunerated
activity in Cameroon.
2.2.
It is apparent from the above requirements, that obtaining an employment contract
approved by the Minister of Employment is obligatory for the issuance of a long-stay
visa for the exercise of a professional activity in Cameroon.
With
regard to the immigration of foreign company managers, even if they are not
considered as employees under the Cameroonian Labour Code, the signing of an
employment contract between the company and the foreign company manager(s) shall
be compulsory for the issue of a long-stay visa for the exercise of a
professional activity in Cameroon.
The employment contract will, therefore, be considered as a mere formality to enable the foreign company manager to immigrate to Cameroon.
3.
Obligation to obtain a residence permit after obtaining a long-stay visa
3.1.
Article 17 of the Immigration law provides that, foreigners aged 18 and above who
have fulfilled the conditions for entry into the national territory and are authorized
to stay there, must within 3 months, under penalty of deportation, apply to the
competent authorities for a residence permit.
3.2.
A Residence permit is an identification document issued to foreigners who have fulfilled
the conditions for entry into the national territory
Residence
permits are valid for a period of 2 years and are renewable.
Foreign
company managers must apply for a residence permit within 32 months of their
entry into Cameroon
3.3.
If a company manager stays in Cameroon and exercises his/her functions for a
period of more than 6 years, he shall be considered as a foreign resident (article
19 of the Immigration Law).
At
this stage, the company manager may apply for a residence card (document issued
to foreigners considered as resident in Cameroon).
This
card is valid for 10 years and is only issued after 3 renewals of the residence
permit.
4.
By way of conclusion, there seems to be a lack of harmonisation between sub-regional
laws (OHADA Laws) and national laws (Labour Code and Immigration Law and its
implementing Decrees).
The
OHADA Uniform Act and the Labour Code do not consider company managers as
employees. However, the Immigration Laws require employment contracts approved
by the Minister of Employment for the immigration of foreign company managers.
This
lack of harmonisation makes the immigration procedure for foreign company
managers complicated.
Furthermore,
other sub-legal issues arise from the requirement of employment contracts approved by the Minister of Employment for immigration. Some main issues that arise are :
- - at what moment is the
employment contract commence? Is it after the signature between the
corporate entity and the foreign company manager or after the approval of the employment
contract by the Minister of Employment?
- - Also, what type of employment
contract is signed in this situation? Is it a fixed-term employment contract or
an employment contract of indefinite duration?
These
points will be discussed in a future article on my blog.
Many
thanks for reading
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