IMMIGRATION: Fighting a Deportation in Kenya.
INTRODUCTION
Two years ago, I was called frantically by relatives of some Nigerian nationals who had been arrested in Nairobi. Unfotunately, the Kenyan police had xenophobically targeted Nigerians living in Nairobi for arrest and deportation. My clients were Nigerians with valid visas and residence permits. They were arrested and arraigned in court over suspicion of being in Kenya illegally.
The court cleared them of all charges. However just as they left the court room they were re-arrested by orders of the Cabinet Secretary. Aparently a deportation order had been issued. This led us to working overnight to have the deportation order quashed by the court.
Reflecting on that case, I realized that so many foreigners living in Kenya risk deportation on any ground, including xenophobia. This article is directed to you the reader. It aims to show you how you can fight a deportation.
The Legal Basis for a Deportation Order
The Kenyan Citizenship and Immigration Act provides the legal framework giving the Cabinet Secretary in the Ministry of Interior and Coordination of National Government, power to order a deportation.
Section 46 of the Act provides as follows:
The Cabinet Secretary may make an order in writing, directing that any person whose presence in Kenya was, immediately before the making of that order, unlawful under this Act or in respect of whom a recommendation has been made to him or her under section 26A of the Penal Code (Cap. 63), shall be removed from and remain out of Kenya either indefinitely or for such period as may be specified in the order
Section 26A of the Penal Code simply provides for the removal of a foreigner who has been convicted of a crime in Kenya, by recommendation of a court that has convicted the foreigner of a crime.
The above provisions are the only provisions under which you as a foreigner can be removed from Kenya. In both cases, the Cabinet secretary will make a deportation order.
How to handle a Deportation Order
The issuance of a deportation order is usually in exercise of administrative powers of the Cabinet Secretary. It thus comes directly under the purview of the Fair Administrative Action Act. Under this Act, before an administrative action is taken, you have the right, among other things to the following:
- Prior and adequate notice of both the nature and reasons for the action.
- An opportunity to be heard
- A right of review and internal appeal against the decision.
- Right to legal representation
In most cases, a deportation will be ordered without the above being considered, thus making the administrative action unfair. In such a case, you as an aggrieved person has the right to institute a Judicial Review Application at the High Court to quash the deportation.
You will need to file a Certificate of Urgency Application to the High Court seeking an injunction stopping your deportation pending hearing of the judicial review application. A separate article will discuss the process of judicial review in Kenya.
Once an injunction is issued stopping deportation, you then proceed to serve the order on the Cabinet Secretary as well as the Director of Immigration. You further serve the orders to all ports of entry and airports in Kenya. This will have the effect of stopping a deportation.
In some cases, you or your lawyer may need to file a separate motion under Criminal Revision at the High Court to get release orders in the event the deportation has been stopped but you are still in custody and if the Application is successful, you will be released.
CONCLUSION
A deportation order is not the end of the road. The law guarantees every person in Kenya basic rights including the right to Fair Administrative Action. We advice clients to always fight deportation through the courts so as to create a culture of respect for the rule of law. Through our touching lives philosophy, we can help you.
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Very educative. How practical is it to stop deportation when the order is issued over the weekend?
Dear Vitalis
It is still possible to stop the deportation the next working day being a Monday. We always urge our clients to make haste especially where there is indication that a deportation may be imminent.
Thank you for this piece.I wish to know what recourse is available to a foreigner who was legally married to a Kenyan citizen and was arrested at Nyayo House by immigration officers for being out of status(overstaying his visa).
He and his Kenyan wife had gone to the immigration headquarters at Nyayo house on the fateful day to regularise his status(which had been overdue by a month and half)by applying for a dependant pass as he had been legally married before he fell out of status.He was detained at JKIA for 3 days after his arrest and subsequently deported.He was never brought before a judge in court nor was he given a reason for his deportation.This happened in 2018.He was also barred from entering Kenya for 10 years and as such his wife can only visit him every year or so in a country bordering Kenya where they meet for a few weeks.They have been married almost 5 years now and going through this depressing situation.
What recourse does the Kenyan wife have in the Kenyan judicial system to remedy this injustice?
Dear Nelson
For this case we would institute judicial review proceedings that would enable the court to overturn the deportation and allow the foreigner to come back to Kenya. The foreigner may also be granted compensation by the courts for the treatment he received from immigration officers.
Kind regards.
I have a work permit when I leave Kenya I was deported
I don’t why
Now after 2 days I well send lawyer I check what happein
Dear Hussein
We can help you fight your deportation to allow you come back to Kenya.
Kind regards.
I was framed by my ex employer of fraud charges and there was no proof at all
The employer cancelled the permit and immigration officer called me stating I had overstayed with my family and I need to leave the country upon which I had left immediately
What if I want to come back to the country
Will this be a problem ?
Hello Jay,
Sorry for the allegations placed on you, at Begi’s Law Office & Chambers Advocates offer both virtual and physical consultation where one of our lawyers can advice you on the matter at hand. You can reach us through 0743-235923 or email us – info@begislaw.com
I wish to know what solution is available to a foreigner who was arrested with valid visa but deported and blacklisted from getting back into kenya
Hello Olamilekan, thank you for reaching out to us. We are sorry for what you encountered during your stay in Kenya. We will need more information to be able to advise and assist where possible. We have responded to you via your email, Kindly check and revert for assistance. You can also reach us via our phone number which are available on Whatsapp too 07 95 797 897/ 07 43 235 923. We look forward to being of service to you.
Thank you for this piece of advise
I wish to know what solution is available to a foreigner who was arrested with valid visa and i was arrested and arraigned in court over suspicion of being in Kenya unlawfully but after given a chance to explain to the judge ,the court cleared me off all charges. However just after i left the courtroom i was re-arrested by orders of the Cabinet Secretary. Apparently a deportation order had been issued and i was deported but my two passport wasn’t return ….. Two years after deportation i travelled back to Kenya with a new passport but was arrested and deported again…How can i get my name cleared from blacklist and what solution can i get in getting back to Kenya