We continue by looking at some rather interesting and rather controversial aspects in the Immigration Act Chapter 4:02 and Immigration Regulations Statutory Instrument 195 of 1998. The Immigration Act regulates the entry of persons into the country and their departure.
Rights: MIRIAM TOSE MAJOME
It prohibits the entry into the country and removal of certain undesirable and prohibited persons. It provides for the control of foreign visitors and provides for related matters. We will look at who some of these people are that are not welcome into our country.
Facts
I had the pleasure of being accorded a meeting with the Assistant Regional Immigration Officer in charge of compliance issues. He very kindly assisted in interpreting some of the less clear aspects of the Act discussed last week. Permanent residence is not automatically extended to children or the parents of an applicant.
They too have to satisfy set criteria and be compliant with the law. Permanent residence is not an inherited status and is not automatic even to the offspring or parents of the person who has it. It is a privilege extended to the applicant’s close family members, but only if they qualify. Residence permits of a limited duration are given for one or two years and are renewable at the discretion of the Immigration Department. Permanent residence status is granted when the applicant has been in continuous and lawful stay in the country for at least 5 years.
There are many factors that determine the granting of permanent residence status or a residence permit and they include background checks.
He corrected the assertion that permanent residency status can be withdrawn. Only residence permits can be withdrawn if the person does not taken it up within six months of it being granted.
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Marriages of convenience
A marriage of convenience is a marriage entered into for purposes of expediency to attain some personal gain which is not about enhancing a personal relationship. It is entered into for financial strategic reasons such as facilitation of a certain migration and citizenship status that confers right of entry into the country.
The other party typically gets a financial reward in return. Whether true or false, Zimbabwean women are mostly suspected and blamed for entering into such marriages with mostly West Africans to facilitate their legal stay in the country for them to carry out their businesses.
Contracting such marriages is unlawful. Section 3A provides that it is a marriage of convenience if two persons have married each other primarily for the purpose of obtaining a right of entry into the country or have married each other without any intention of living together as a married couple in Zimbabwe.
If the married persons have not lived together as a married couple since the marriage was contracted it shall be presumed to be a marriage of convenience unless proved otherwise. The couple will have been married without any intention of living together as a married couple. Marriages of convenience are not regarded as valid marriages for the purposes of applying the Immigration Act.
Documentation
The procedures for legal entry into any country are standard. Any deviation from the standard procedure amounts to illegal migration.
Entry must only be at designated entry points and using unapproved points of entry is illegal. Border jumping is highly dangerous as border security is typically done by armed soldiers as the integrity of borders is a high priority national security issue.
Migrants are compelled to present themselves at ports of entry and produce valid travel documents. They must produce documentary or other evidence supporting their claim to enter or remain in the country and prove they can support themselves without becoming a burden to the State.
Migrants may also be subjected to certain tests which they are required to comply with. HIV testing is not permissible and it cannot be a ground for denial of entrance into the country. However for public health reasons other tests may be ordered.
If an immigration officer suspects an applicant of being afflicted or infected or suffering from any disease that would render them to be a prohibited person in terms of the Act the officer is empowered to direct that person to undergo medical examination by a government medial officer or other medical practitioner.
Homosexuals and prostitutes
The Act lists a number of what are deemed undesirable and prohibited immigrants. Certain provisions are controversial and amount to serious human rights violations and potential constitutional breaches if implemented. Among what are deemed undesirable immigrants and prohibited migrants are prostitutes and homosexuals.
It is not clear how an immigration officer would know if an applicant is a homosexual or prostitute or has lived on or knowingly receives or has received earnings from prostitution or homosexuality.
The Home Affairs minister of can declare any person an undesirable immigrant and such person will not be allowed entry into the country or will be deported if already within.
A number of foreign journalists and illegal expatriates met their fate this way and were bundled onto the first outward bound aeroplane. The Zimbabwe government is the ultimate equaliser. It does not discriminate between high and low status. Anyone can be deported or denied entry.
In 2008 a very high brow delegation comprising a former United Nations Secretary General, a former United States of America President, a former First Lady were to much astonishment and publicity denied entry into the country. These were Koffi Annan, Jimmy Carter and Grace Machel respectively seeking to enter the country on a fact finding mission to investigate reported human rights abuses. Reasons for the denial vary and evoke much debate but whichever way the incident is instructive in showing that there is no automatic entry into the county and it matters little who you are.
Disabled persons
Other prohibited persons as stated in the Act are epileptic persons or mentally disordered persons as deemed in the Mental Health Act. More controversially are those most unfortunately described in the Act as being deaf and dumb, or deaf and blind, or dumb and blind or having other physical incapacitations.
The assumption as expressed most unfortunately is that disabled persons have to be accompanied and that person or other person has to give security that there is adequate support for the disabled person’s duration in the country.
While this in itself is not unreasonable as every visitor to the country must show capacity of adequate sustenance it is the inappropriate and paternalistic language that is worrisome. It contravenes international best practices of the attitude and language used to address disabled persons. Disabled persons are simply no longer referred to as dumb or deaf and they do not need chaperons or guardians to vouch for them if they are adults. This is clearly of interest to organisations working with disabled persons and the special interest legislators for disabled people.
Other prohibited persons are those infected or afflicted or suffering from prescribed diseases. They cannot enter the country unless they possess a permit to enter and remain in the country upon certain conditions fixed in their permits. The other prohibited persons pertain to certain classes of convicted criminals.
Next week we shall discuss the different types of permits to visit, work, conduct business or study then conclude the discussion on immigration with illegal immigration issues from a political and global perspective.
Miriam Tose Majome is a lawyer and a teacher. She can be contacted on [email protected]
