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.
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.
Source: Begi’s Law Read More