Introduction
Section 2 of the Citizenship and Immigration Act defines deportation as “the action or procedure aimed at causing an illegal foreign national to leave the country either voluntarily or compulsorily, or under detention in terms of this Act and the verb ‘to deport’ has a corresponding meaning.” Once a person has been deported and they enter Kenya on their way to another country, an immigration officer may be arrested and detained without a warrant. Any foreigner who has been issued with a deportation order will be deported within 90 days if there lies no appeal.
The power to order a deportation is the reserve of the Cabinet Secretary for the Ministry of Interior and the Coordination of the Internal Government by virtue of Section 46 of the Kenya Citizenship and Immigration Act which states that;
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.
Under Section 23 A of the Penal Code, the court that convicts a foreigner for an offence which does not exceed 12 months may make recommendations to the Commissioner of Prisons and the Inspector General of Police for the convicted foreigner to removed out of the country immediately or upon the completion of his sentence. Where foreigner has been convicted for an offence whose sentence exceeds 12 months, the Court may make recommendation to the Cabinet Secretary responsible for immigration to issue an order of deportation.
Your Rights during immigration proceedings
Only citizens have free and encumbered right of movement to enter and leave the country at will. However, as a foreigner you are entitled to fair administrative action. Although foreigners are not entitled to the full scope of constitutional guarantees under the Constitution of Kenya, they are entitled to the right to fair hearing during the immigration proceedings.
The High Court of Kenya in Republic v Fatuma Abdullahi Isaaq [2021] eKLR held that:
“It is trite aliens who have passed through our gates/borders even though illegally should be afforded the full panoply of procedural due process protections and may be expelled only after proceedings conforming to the constitutional standards of fairness. In the same vein those who have never entered Kenya have no such cognizable rights. The immigration proceedings, although not subject to the full range of constitutional guarantees and protections must nevertheless conform to the right to a fair hearing under Article 50 which simply embodies the procedural canons of due process.”
- You should be given prior and adequate notice of the nature and the reasons for action.
- You should be given an opportunity to be heard.
- You should be given the right to legal representation in the immigration proceedings.
If the immigration proceedings are tainted with illegality, impropriety and irregularity the proceedings will have resulted in the failure of justice. Further, you would be entitled to apply to the High Court for the decision of the Department of the Immigration to be quashed and for the deportation order to be vacated.
The High Court in exercising it’s supervisory jurisdiction will also seeking to determine whether;
- The immigration official acted legally?
- Whether the immigration official acted within the scope of their powers.
The Court in Republic v Cabinet Secretary: Ministry of Interior and Co-ordination of National Government, Director of Immigration & Attorney General Ex Parte Richard Boack [2018] eKLR held that;
“At the core of fair administrative action and the duty to act fairly is the need to ensure that a person affected by a decision has an effective opportunity to make representations before it is taken, so that he or she has a chance to influence it. As indicated in Article 47, the situations where a duty to act fairly will apply is where the decision maker is taking a decision that will have a direct and specific impact on an individual.”
Conclusion
In most cases, a deportation order will be issued without according you a fair administrative action and consequently you will need to move the court for the order to be quashed. If the immigration proceedings are tainted with irregularity, impropriety and unfairness you have the right to apply for a judicial remedy and have the order vacated. If you have been issued with summons to appear before an immigration officer or you have been subject to unfair immigration proceedings do not hesitate to contact us.
This article is free of charge for information purposes only. It does not constitute legal advice and it should be not relied on as such. WNK Advocates LLP takes no responsibility for the accuracy and /or correctness of the information and commentary as set out in the article. If you have any query regarding the same, please contact us at legal@wnkadvocates.com
