Who Are Prohibited and Inadmissible Immigrants under Kenyan Law?
Under Section 33 (1) of the Kenya Citizenship and Immigration Act, 2011 (Cap. 170), prohibited immigrants are foreign nationals who are barred from entering or remaining in Kenya due to various serious legal, security, health, or public order concerns. This includes individuals who have committed or are suspected of committing serious crimes such as human trafficking, terrorism, money laundering, war crimes, or who threaten national security. Additionally, any person whose presence is unlawful or has an order for removal is classified as a prohibited immigrant.
Under Section 33(2) of the Act, Inadmissible persons, on the other hand, include non-citizens who cannot support themselves or dependents, persons refusing medical examination, judicially declared incompetent persons, bankrupt individuals, and asylum seekers whose refugee status has been rejected.
Categories of Prohibited Immigrants Include:
- Individuals convicted of crimes punishable by imprisonment of three years or more
- Persons acquitted of crimes but lacking a valid immigration status
- Suspected terrorists or those involved in activities detrimental to national security
- Human traffickers, smugglers, and those involved in sexual exploitation
- Individuals engaged in narcotics trafficking or the illicit arms trade
- Persons convicted of war crimes, genocide, or crimes against humanity
- Those involved in cybercrime, piracy, or intellectual property violations
- Individuals whose conduct offends public morality or incites racial/ethnic hatred
The legal effect of being prohibited/inadmissible
Subject to Section 34, entry, transit, or residence of a prohibited or inadmissible person is unlawful, and an immigration officer must refuse permission to enter or transit. However, an immigration officer may issue a pass authorizing temporary entry, stay or transit on stated conditions.
What Constitutes Prohibited Acts and Offences?
The Kenya Citizenship and Immigration Act, under section 53, along with the subsidiary Immigration Rules, outlines offenses relating to prohibited immigrants, including but not limited to:
- Providing false and misleading information to immigration officials
- Willful non-compliance with orders to leave Kenya
- Entering or staying in Kenya unlawfully without a valid permit
- Harbouring or assisting prohibited immigrants
- Using or forging immigration documents unlawfully
- Engaging in employment or business without authorization
- Obstructing immigration officers or police officers in the execution of their duties
- Violating the conditions of issued permits or passes
Any person convicted of an offence under the above section shall be liable upon conviction to a fine not exceeding five hundred thousand shillings, KShs 500,000, or to imprisonment for a term not exceeding three (3) years, or to both.
Any person convicted under subsection (1)(q), employing a foreigner who is qualified to be employed in Kenya, is, in addition to the prescribed fine and or term of imprisonment as the case may be, liable to pay for the cost of maintenance and removal of the person s/he employed.
For purposes of paragraph (1)(p), being employed contrary to the Act, a person who is a victim of the offence of human smuggling may not be held liable so long as he identifies and is willing to act as a witness in the prosecution of the smuggler.
The Immigration Rules further outline procedures for enforcement, including arrest, detention, and removal orders under Section 43 of the Act.
Reprieve for Prohibited Immigrants: Applying for a Special Pass
Despite being prohibited or inadmissible, section 33(6) of the Act allows discretion for immigration officers to issue a Prohibited Immigrant’s Pass. This pass permits such persons to enter, remain for a limited period, or transit, subject to conditions under the pass. The pass is issued at the discretion of immigration authorities, typically to facilitate the orderly management of the person’s stay or removal process. The most grounds for applying for this pass are: Urgent medical cases, family unity/hardship, pending appeals/judicial review, completion of business or studies, humanitarian or public-interest considerations. (These are policy/practice-driven grounds that must be substantiated.)
Applicants must comply with any conditions imposed, and failure to do so can lead to criminal sanctions. Application for the pass involves submitting prescribed forms and supporting documents to the Directorate of Immigration Services.
Process of Repatriation of Prohibited Immigrants
Where a prohibited immigrant is identified and not granted a pass to remain, the Cabinet Secretary Interior may make an order in writing, directing that any person whose presence in Kenya was, immediately before the making of that order, unlawful under the 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.
This process involves:
- Issuance of a Removal Order to the prohibited immigrant
- Arranging transportation out of Kenya, which may involve coordination with foreign governments and embassies.
- Handling any expenses related to repatriation, which may be charged to the individual, their family or agent.
- Depositing security or bonds to ensure compliance with removal.
Repatriation must be done lawfully while upholding the individual’s rights under the Constitution and applicable international obligations.
Rights of Prohibited and Inadmissible Immigrants under the Constitution
Prohibited and inadmissible immigrants, like all persons in Kenya, enjoy fundamental rights guaranteed by the Constitution of Kenya, including: –
- Right to dignity (Article 28)
- Freedom from torture and cruel treatment (Article 29)
- Right to fair administrative action (Article 47)
- Right to access justice (Article 48)
- Right to legal representation and fair trial (Article 50)
Kenyan courts have upheld the rights of immigrants in cases involving unlawful detention, denial of legal counsel, and procedural unfairness. These rulings reinforce the need for due process, even for inadmissible persons.
Furthermore, asylum seekers or refugees among the inadmissible must be afforded protection in line with Kenya’s international treaty obligations and the Refugee Act.
How Njaga & Co. Advocates LLP Can Assist with Immigration Law in Kenya
Navigating Kenya’s complex immigration landscape requires expert legal guidance for individuals, families, and businesses. Njaga & Co Advocates LLP is Kenya’s trusted premier firm specializing in all aspects of immigration law to ensure seamless compliance and successful outcomes.
Our Immigration Law Expertise Includes:
- Visa and Permit Applications: Work permits (Class A, B, G, etc.), investor permits, digital nomad and special passes, and dependent passes.
- Prohibited & Inadmissible Immigrant Solutions: Assistance with prohibited immigrant passes, temporary stay approvals, repatriation challenges, and legal defenses.
- Permanent Residency & Citizenship: Strategic advice and application support for permanent residence, naturalization, and dual citizenship claims.
- Business Immigration Compliance: Corporate immigration services, including expatriate workforce planning, permit renewals, and compliance audits.
- Immigration Appeals & Litigation: Representation in immigration hearings, judicial reviews, constitutional petitions, and criminal offense defenses related to immigration law.
Family & Humanitarian Immigration: Spousal visas, asylum applications, refugee status protection, and reunification services.
Why Choose Us?
- Deep expertise in Kenyan immigration statutes, the Kenya Citizenship and Immigration Act, and Immigration Rules.
- Personalized and strategic solutions tailored to each client’s unique immigration status and goals.
- Dedicated support from application through appeal, ensuring timely approvals and safeguarding your legal rights.
- Trusted adviser for businesses and individuals with a commitment to integrity, confidentiality, and success.
Secure your future in Kenya, protect your rights, and ensure hassle-free immigration processing by contacting us today.
Disclaimer: This article is for informational purposes only and not a substitute for legal advice. Consult a qualified advocate for specific guidance.
