Hiring of Foreign Employees by Private Employment Agencies

According to the Notice no. 484/MITRAB/DTM/GD/211/2014, of 17 September 2014, from the Immigration Labor Directorate, the Provincial Labor Directorates, with immediate effect, must abstain themselves from receiving work permit applications of foreign citizens submitted by Private Employment Agencies, for transfer purposes to third parties or user enterprises.

The order described in the Notice is grounded on the basis of Article 3 of the Regulation of Private Employment Agencies, approved by Decree no. 6/2001 of 20 February, whereby the Private Employment Agencies are only qualified to hire foreign nationals citizens to integrate their own staff andnot for transfer purposes to third parties.

A review undertaken to the Regulation of Private Employment Agencies, to the Regulation regarding the Mechanisms and Procedures for Hiring Foreign Employees, as well as, to the Labor Law, allowed us to conclude that the understanding of the Immigration Labor Directorate provided in the referred Notice is problematic and neither turns out to be peaceful, which leads us to question whether the construction which this Notice presents is in accordance with the requirements laid down lawfully on the matter.

It is correct that the article 3 of the Regulation of Private Employment Agencies aforementioned sets out its application to the national employees, likewise it is correct that the no. 3, of article 2 of the Regulation regarding theMechanisms and Procedures for Hiring Foreign Employees entitles the Private Employment Agencies to be able to hire foreign nationals, therefore it should comply with the quota system/regime or work permit, as applied to any other company.

However, the Regulation regarding the Mechanisms and Procedures for Hiring Foreign Employees was enacted by a Decree, a legal act with same hierarchy and more updated than the Decree no. 6/2001 of 20 February which enacts the Regulation of Private Employment Agencies, cited by the Notice issued by the Immigration Labor Directorate.

Is the Notice no. 484 / MITRAB / DTM / GD / 211/2014, of 17 September 2014 to incur unlawful and therefore infringing the right to work to foreign nationals in the country?

Abdul Assane

Lawyer