FG Appeals Judgment Nullifying Hike of Expatriate Fee

Tobi Soniye

The Minister for Interiror and the Comptroller Genereal of Immigration have filed an appeal against against the judgment of a Federal High Court which nullified the new Combined Expatriate Residence Permit and Alien Card (CERPAC) fees introduced in 2018.

A notice of the appeal obtained by THISDAY reveals that the appellants raised twelve grounds upon which they asked the appellate court to set aside the judgment of the federal high court.

The notice of appeal was filed at the Lagos Division of the Court of Appeal by the appellant lawyer, Mrs Jedy Agba.

In a judgment delivered 

in November last year, Justice Rilwanu Aikawa of the Federal High Court, Lagos, declared as unconstitutional the contract between the interior ministry and Continental Transfert Technique Ltd, or Contec, for the collection of the CERPAC fee.

The judge ruled that only the Nigeria Immigration Service was lawfully empowered to collect such fees.

“While Section 102 of the Immigration Act provides for private sector participation in the development and provision of infrastructure, there is no provision as far as I can discern which allows for the participation of the private sector in the collection of residence permit or visa fees,” the judge held.

In Nigeria, CERPAC is mandatory for expatriates. It allows them to live and work in the country. It is renewable annually or every two years depending on the validity of the period given.

The interior ministry, under former minister Abdurahman Dambazau, reviewed the fees for the card from $1,000 to $2,000 on December 13, 2018, following a request by Contec two days earlier.

The increase was without a prior warning to foreign nationals and, as such, many of them were reportedly surprised at the banks they had visited to pay for renewals.

Also in December 2018, the ministry and the company reviewed the sharing formula for the collected revenues: 55 per cent to the company, 33 per cent to the federal government, five per cent to the ministry of interior and seven per cent to the NIS.

But following the reviews, Mr Femi  Falana (SAN) sued the company, interior ministry and the immigration service after the federal ministry of finance had refused to act on his earlier petition.

The judge upheld Falana’s position that the minister lacked the power “whatsoever” to increase the fee without a money bill presented by the president and passed by the National Assembly.

The judge held: “Although Section of the Immigration Act gives the minister the power to review the visa fees without the legislature,” the judge noted but added that runs contrary to Section 59 of the Constitution.

“Any law, a statute or provision thereof that runs riot and violent to the provision of the Constitution or is in conflict with the Constitution is null and void to the extent of the inconsistency.”

He further held  that all fees collected from expatriates in Nigeria shall be paid into Federation Account in line with the provision of Section 162 of the Constitution.

The minister of interior and the NIS are dissatisfied with the judgment and have  now asked the Court of Appeal to set it aside.

Pending the determination of the appeal, they have applied to the federal high court judge to stay the execution of his judgment. The application was dated January 21st, 2020 and has not yet  been heard by the trial judge.

In the notice of appeal, the appellants challenged Falana’s locus to institute the case and asked the appellate court to hold that the trial judge was wrong when he held that Falana had established sufficient interest to prosecute the case.

They argued that Falana was not an expatriate and was not hired by any expatriate.

They contended that the judge was wrong in treating the increase in CERPAC fees increase as a constitutional issue rather tha  a simple contractual issue between two parties.

In ground three, the appellants said: “The trial judge erred in law when he held that the provisions of section 31 (1) of the Immigration Act 2015 is inconsistent with the provisions of section 59(1), (b) of the constitution.”

The Court of Appeal has yet to give the appeal a date for hearing.