Dadirai Mphato and Stanley Chike-Eze v Chief Immigration Officer and The Co-Ministers and The Attorney General of Zimbabwe

### Preamble
1
HH 316-11
HC 12549/11
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DADIRAI MPHATO

and

STANLEY CHIKE  EZE

versus

CHIEF IMMIGRATION OFFICER

and

THE CO-MINISTERS

and

THE ATTORNEY GENERAL OF ZIMBABWE

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 29 December, 2011

Urgent Chamber Application

G Nyandoro, for the applicants

C Chidzenga, for the respondents

DUBE J:  This is an urgent chamber application. The interim relief sought is for the immediate liberation of the second applicant from the Harare Remand Prison on the basis that his detention is unlawful.

The first applicant is the wife to the second applicant, Stanley Chike-Eze, a Nigerian resident in Zimbabwe. The first applicant joined herself as a party to the application on the premise that her constitutional right to freedom of movement and right to reside in this country with her spouse is likely to be violated by the deportation of her husband.  The applicants averred that on 14 December 2011 both were called to the Immigration offices for a routine interview. After the interview the second applicant was arrested.  The applicants claim in their founding and supporting affidavits that they were not given any explanation for the arrest. That although the officials explained to the applicants that the second applicant was a prohibited immigrant, they did not have any proof of that fact. They claimed that respondents have already made a decision to deport the applicant without investigating his circumstances. The applicants challenge the arrest and subsequent detention of second applicant.

The applicants’ counsel in his submissions later conceded that the second applicant was twice deported because he did not have valid papers. He however contended that the immigration department has not followed proper procedures as prescribed by the law. The second applicant suggested that the Immigration Department has already cancelled his permit without first investigating his circumstances. He submitted that s 34(b) of the Immigration Act [Cap4:02], [hereinafter referred to as the act], requires a person who has been previously removed or ordered to leave the country to reapply for a permit before re-entering the country and that second applicant complied with that requirement and was issued with a permit and therefore regularised his stay in 2003. He argued that the department has not complied with procedures outlined in s 8 of the Act in that it seeks to investigate the matter after it has already made a decision to deport him.  The applicants contended that his detention is therefore unlawful. That if the court does not intervene, the second applicant will be unfairly and wrongfully deported.

The respondents confirmed in their opposing papers that the applicants were on the day called for a routine interview. The respondents stated that immigration officials arrested second applicant on the basis that he was twice arrested and deported by the immigration department from Zimbabwe. Records available confirm the deportations. That second applicant misrepresented and concealed certain information to immigration officials when he made an application for a residence permit and a visa in 1983.  They also attached the relevant documents. They stated further that second applicant made false representations in contravention of s36 (a) (i) of the act. They averred that on 20 June 2003 the second applicant made an application for a visa into Zimbabwe. He indicated in his application for a residence permit that he was coming to Zimbabwe for the first time and on holiday for a month and  that he had never been restricted from entering any country, deported or repatriated from any country. He did not mention that he was legally married to a Zimbabwean woman. A visa for purposes of a holiday was issued. He later obtained a residence permit. The respondents submitted that the second applicant was allowed to enter or remain in Zimbabwe through an oversight on the part of the Department of Immigration and misrepresentations on his part. That he resided in Zimbabwe without the authorities realising that he is a prohibited person and that in terms of s 3 (2) of the Immigration Act [Cap 4:02], he is not entitled to acquire domicile in Zimbabwe. Mr Chidzenga who represented the respondents submitted that investigations had been stayed pending the outcome of this application. That the deportation process is lengthy and that the decision to deport applicant has not yet been made or communicated to second applicant. He submitted that once that decision has been made, the decision will be communicated to him.

The respondents submitted further that if the applicant wanted to be allowed back into the country he was required to apply for exemption in terms of s 16 of the Act whilst still in his own country and that he breached the law by entering the country and remaining here between the period 1999 and 2003 when he was under prohibition.

The Immigration Department was faced with a person who had allegedly committed two offences in terms of the act. The first offence involved giving false information and the other entering the country whilst being a prohibited immigrant. The second applicant was advised of the reason for his arrest and detention in terms of s 8 (4)(b) of the Act.  The applicants’ complaint that no explanation was given is contradicted by their latter statement that they were not given proof at that stage. The impression created is that they were given the reasons but that their view was that the authorities had no proof of the allegations.  It is clear from the papers submitted that second applicant was deported on two separate occasions on the basis that he was a prohibited immigrant. The applicants conceded this point. The first time he was deported was in1998. He came back into the country whilst under prohibition and was again subsequently deported in 1999. The applicant has although acknowledging the deportations, decided to remain mum on the reasons and details of the deportations. On 20 June 2003 second applicant made a visa application for entry into Zimbabwe for a month long holiday. It is unclear when he re-entered the country.  He stated that the visit was his first into the country. He made another application for a residence permit and gave out that he had never been restricted, deported or repatriated from any country. He did not state that he was either previously deported or that he has a Zimbabwean wife and children in Zimbabwe. He was issued with a permit based on false information.

Both offences are criminal offences in terms of ss 34 and 36 of the act. The respondents could either report him to the police, deal with him in terms of ss 8 and 20 of the same act or both. An immigration officer is entitled in terms of s 8 of the act to arrest any person whom he suspects on reasonable grounds to have entered or to be in the country in contravention of the act. They are empowered to detain such person for a period not exceeding 14 days to facilitate investigations into whether or not he is a prohibited person and pending arrangements for his removal. The immigration department may, if it finds that the person is a prohibited person, remove or cause him to be removed from Zimbabwe in terms of s 8(2)(a) and may detain such person pending such removal. Once they decided to deal with him in terms of s 8, the respondents were required to investigate and make a decision on whether or not to remove him from the country within 14 days and the department of  immigration was at that stage, engaged in that process. There is nothing to suggest any wrongful conduct on their part.

The respondents had 14 days to carry out investigations and then make a decision on the matter in terms of the act.  Second applicant was arrested on14 December 2010 and this application was filed two days later. The matter was referred back to the applicants after the court had raised queries. The matter was set down for hearing on 21 December and postponed by consent to 29 December for hearing. It is clear from the respondent’s opposing affidavit that at the time the application was filed, respondents were still investigating the matter and a decision whether or not the applicant should be removed from Zimbabwe had not been made. There is no proof that a decision to deport the second applicant had already been made. The applicants’ claim that a decision to deport him had already been made is not supported on the evidence available.

The respondents were at the time the application was filed still within the 14 days prescribed at law to carry out their investigations.

The applicants’ counsel argued that the fourteen days within which to carry out investigations elapsed a day before the hearing and that the respondents have failed to investigate the matter within the required days. This point does not find favour with this court. The applicants are mainly to blame for the delay in finalising this matter. When they filed their application, it lacked sufficient detail and had to be returned to the applicants for clarifications and when the matter was finally set down for hearing, the matter was postponed to enable them to study the opposition papers. The respondents on the other hand had stayed all investigations pending the outcome of this application.

The applicants’ counsel argued that s 20 of the Immigration Regulations 1998, was not complied with. Section 20 of the Immigration Regulations, 1998, empowers the Chief Immigration Officer to cancel without prior notice a residence permit if it was obtained on any incorrect information. Investigations have not reached that stage.

An analysis of the respondents’ opposition papers and submissions discloses justification for the arrest and detention of the applicant as the second applicant gave false information regarding his status in Zimbabwe and because he had previously been deported from Zimbabwe. The applicant was able to remain in Zimbabwe through error, oversight and misrepresentation. He is still a prohibited person and in terms of s 4 of the act, may not be allowed to remain in the country. The immigration authorities were justified in arresting and detaining the second applicant for purposes of investigating him further.

This case cries for an overhaul of the record keeping and vetting systems of the Immigration Department. It is disconcerting that a prohibited person can enter Zimbabwe on two separate occasions as a prohibited immigrant without detection. Further that he is able to remain in the country for 12 years and even marry a Zimbabwean woman without raising any suspicion. When he personally appears before the authorities, he makes false representations which are accepted without verification or authentication. The second applicant seems to have been a regular visitor to the immigration department and no one realised the irregularities.

The second applicant’s conduct is reflective of a wanton and flagrant disregard of the laws of this country. The authorities have caught up with him and they should be allowed to carry out their investigations. The first respondent complied with the requirements of the law when he ordered his arrest and detention for violating the law. It is in the interests of justice that the second applicant’s status in this country be investigated and an appropriate decision regarding his status be made.

The application is dismissed.

Hamunakwadi, Nyandoro&Nyambuya, applicants’ legal practitioners

Civil Division of the Attorney General’s Office, respondents’ legal practitioners