WHY DO WELL INTENDING FOREIGN NATIONALS AT TIMES AVOID KENYA IMMIGRATION PROCESSES?

​I have on numerous occasions, in this forum and elsewhere, received many complains and misgivings from many foreign nationals residing in Kenya,visiting or just wishing to visit. Their issues range from: delayed processes, opaque procedures, solicitations for bribes by ‘officers’ to speed up their processes, non responsiveness from Kenya immigration department among others. After interrogating these allegations, I must say that I found quite  a number of them true and others really not…mostly based on hearsay or from some brokers in town hell bent on  making a kill by making Kenya immigration processes appear impossible without their intervention.

A few weeks ago, I was at Kenya Immigration headquarters in Nyayo house to check on some issues as well as catch up with my former colleagues there. Out of the blue we started discussing how easy or not so easy foreigners get work permits and special passes in Kenya. Apparently from what I gathered, there are substantial number of Kenyans working in west African states such as Nigeria. Such Kenyans am told work mainly in the ICT sector in fairly senior positions and that such people get their work permits in Nigeria with ease. So the question was why Nigerians applying for either short or long term permits in Kenya face delays and even rejections? This fairly senior Immigration official could not see the reason why that was the case…just like me! 

As a matter of fact, the Kenya Immigration laws allow for a special pass ( short term work authorization) to be issued on arrival. I know this because I was part of the team that looked at this when I served at the department of Immigration. However, for some reasons that I don’t know, this has not been happening. Applications still need to be done at the Immigration offices in town. What that means is that there are so many people that would like to apply, an in fact apply but before it is issued they will have completed what they came to do and left the country…meaning that the state will have lost revenue both in appropriation in aid and PAYE! This would have been avoided if special passes are issued on arrival or if the processing time is reduced to say a day or two. I have always argued that a special pass is really nothing more than a visa! Many countries allow people to do the things a special pass covers on a business visa. Many people that travel on business around the world can attest to this. I am still not sure what the Kenya Business visa allows or does not allow one to do bearing in mind that one can be on a Kenya Visitors Visa/Business for up to 6 Months! Surely, what business is one doing on a visa for 6 months?

To cut the long story shot, may folks that find it difficult and tedious to wait for months to get a special pass, come to Kenya on a visa and still do what they would have done on a visa…who will check them anyway? I ask this because to police the entire country for such people is really a hard task for the very lean Investigation and prosecution unit of the Department of Immigration. To borrow taxation terms, what many people are doing is  akin to tax avoidance where people exploit loopholes in the law and practice to pay less tax. In Kenya because of systemic lacunas that exist in the practice of Immigration there are many foreigners walking the streets of our cities and towns doing things that they ideally would need a special pass or work permit to do.

However, most of these folks would easily be in compliance if we streamlined our systems and made them easier, transparent and time bound. For example, why not issue special passes at the airport or even charge more for a business visa and allow people to do a bit more on that? Our work permit processes are equally epileptic for lack of a better term. Some cases come out faster than others that take quite some time. I agree that we need to tighten our immigration enforcement and one of the ways to do this is making sure that the determination of any application is above board and clear to everyone. It is better to get a rejection  in good time to allow foreign national plan their life. I do not mean that every person that applies should get an approval…no some must be rejected based on the set parameters but that too should be done in a time bound and clear manner.

A few weeks ago a member of parliament petitioned the National Assemble to look into the delayed processing of citizenship for some people. I could tell from the comments coming from the floor of the house there are a lot of frustrations on the issues of Citizenship, Permanent Residence and in some cases Dependent passes. The truth of the matter is that Kenya Immigration Department DOES NOT issue citizenship: they only help in processing because they are the custodian of all foreign nationals documentations. The president through delegated authority to the Cabinet secretary does! The problem is the way issues are communicated to the applicants: the process in shrouded in mysteries and secrecy. My advise to the Citizenship section is to try and communicate regularly with the applicants to update them on their applications. Apart from spouses of Kenyans and those regaining, citizenship issuance can not be forced on the government but there is need for an objective determination of applications with some clear timelines of the process.

Allegations of corruption on the part of Immigration department when processing various applications has been a common thing in many forums. Whereas I agree there are issues of corruption, I dare say that now than any other time in the history of Immigration, the Department of Immigration has improved on their systems and processes! Before you start hurling stones at me look at how easy it has become to make applications for visa, passes and even passports online. Well, there are still challenges of people that do not want to change but I dare say there are exceptional officers and officials of the department that are working in very difficult circumstances but still keen on offering services to the public.

Anyway, that is a debate that can never end. Before I rest my case I would like to mention a category of people that are the most frustrated with the Immigration department: Kenya women married to foreign nationals! Although  they are entitled to getting dependent passes as their constitutional right, Kenya Immigration has not been processing dependent passes for their spouses. There is no formal communication from Immigration saying that they should not apply or will not get but from the complains I have heard most of these are never issued. As if that is not enough, even those that qualify for permanent residence as spouses of Kenyans, they are required to provide evidence of temporary residence in Kenya….how on earth can they provide that when their applications for dependent passes have not been processed or have been rejected all together? Anyway I hope someone will think about it and consider some solutions for them… I am not a prophet of doom but I can see a class action suit…and I can see the state losing and getting embarrassed in court…probably the Attorney General will actually refuse to argue such a case because there is no law that will negate a constitutional provision as per articles, 12, 27, 39 and 45 of the constitution of Kenya 2010.

Granted. There are valid reasons to scrutinize every application made by Kenyan ladies married to foreign citizens like any other application but these must be done within the prism of the law and in accordance with articles 47 of the constitution.

It is when we make it impossible for people to  comply with the laws that even otherwise good people to turn to extra judicial ways to survive in the country. Yes, we an make our systems easy to allow people to enjoy the rights and privileges provided for in the constitution just like very many Kenyans in the diaspora do in their countries of domicile. As a country we must also accept that we are part of the globe and our own citizens are out there…

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