Need to reform processing of entry permit and the appeals framework

Ethiopians

Eight Ethiopians arrested at Losesia, Samburu County, in an Isiolo court in 2019. They were jailed for two months after pleading guilty to being in the country illegally.

Photo credit: File | Nation Media Group

What you need to know:

  • Perceptions have been created that there are many foreigners working or doing business in the country.

Citizenship and immigration matters in Kenya have been entrenched in the Constitution since 1963, when three Acts of Parliament — The Kenya Citizenship Act, the Immigration Act and the Aliens Restriction Act (Cap. 173) — took effect. Suffice it to say, a lot has changed since, leaving in its wake many areas that are crying for reforms.

One is the processing and adjudication of applications for entry permits, commonly known as work permits, by foreign nationals seeking to stay in the country temporarily or long-term as employees or investors.

Perceptions have been created that there are many foreigners working or doing business in the country. But while this assertion may sell in the public eye, it’s not backed by data. When verification was conducted a few years back, just less than 30,000 foreigners were found to be residing in Kenya lawfully, on work permits. This is a negligible figure in a country of close to 50 million people.

While the process of receiving and processing applications is clear and fair, there is, nonetheless, a need to review the composition of the Entry Permits Determination Committee as well as the process of appeals where an application is rejected.

To ensure objectivity and participation, there is a need to consider inclusion of a representation of the private sector, the main source of applications that end up at the committee.

Only government officials sit in the committee, which considers applications solely based on papers presented before it. A decision to approve or decline an application is based on a one-sided view of the bureaucrats. This state of affairs, where, in cases of rejection, companies are unable to deploy key resources for their operations in the country — and, consequently, fail to meet their operational needs — is not helping to build a conducive environment for doing business.

Permits

The committee would, therefore, be enriched by having a representative of the private sector, who would provide some insights on what the companies applying for these permits require to keep them running.

However, if for some reason the committee cannot accommodate a ‘non-civil servant’, then provisions of Section 23 of the Kenya Citizens and Foreign Nationals Management Service Act 2011 should kick in. A Kenya Citizenship and Immigration Service Appeals Tribunal should then be established to receive and adjudicate on all appeals on decisions that applicants feel were not fair.

As a quasi-judicial body presided over by an experienced lawyer with sufficient knowledge of law and immigration, it would be a more objective arbiter. And being under the Judiciary, it would be more independent and objective in making this determination.

This is a better arrangement than what’s currently in place, where appeals are sent to Immigration Cabinet Secretary with no clear timeliness and clarity of outcomes. Many a time, the CS may not even have time to look at the appeals objectively and, hence, ends up making decisions based on the advice of bureaucrats in the ministry who may be conflicted or not well-placed to be objective.

The net effect is the impression that there is no certainty and clarity on the appeals and that appellants stand a slim chance of  a fair and objective hearing, and also that the process is riddled with opaqueness and corruption due to delays and lack of transparency.

The body can operate like the Tax Appeals Tribunal, where all parties are heard and allowed to make written and oral submissions before it in person or through a representative. The law envisaged that where there are processes and decision-making there will be people not happy with the outcomes. It, therefore, made a provision for an immigration tribunal. This is a good start, even as a consideration of an immigration judge (s) at the High Court to hear immigration- and citizenship-related cases is being made.

There is sufficient legal framework for an immigration appeals tribunal. This needs to be prioritised as new and complex matters keep arising, even in the immigration field.

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