The court held that the applicant’s husband continued to stay in Zimbabwe despite the expiry of his visitor’s permit issued in 1994, before his marriage to the applicant. He was an illegal immigrant at the time of the marriage, and he remained in Zimbabwe illegally for five years after the marriage. Whether or not the parties truthfully laboured under the misconception that their marriage had naturalized the applicant’s husband, the fact remained that until his deportation, no serious effort had been made by him or the applicant to obtain a residence permit for him. In the absence of any proof that Samson was in Zimbabwe lawfully at the time of the marriage, he was at that time an illegal immigrant. In terms of s 14(1) (i) of the Immigration Act, [Chapter 4:02] that fact, per se, rendered him a prohibited person.
The court further held that s 29(1) of the Immigration Act, [Chapter 4:02] provided that no alien would enter, be or remain in Zimbabwe unless he was in possession of a valid permit or visitor’s entry certificate. The court’s interpretation of Sub-s(1)(i) was that one did not need to be formally declared a prohibited person, for him to be one. He became one by the mere fact of being in Zimbabwe in contravention of the Act.
Marriage; family law; marriage between citizen and non-citizen; immigration law; Constitutional law; freedom of movement; deportation
The applicant, a Zimbabwean citizen, married a Nigerian national who was declared a prohibited immigrant and deported from Zimbabwe. The applicant argued that the deportation of her husband constituted a contravention of her right to freedom of movement as enshrined in s 22(1) of the Constitution of Zimbabwe (Constitution).
The respondent contended that the applicant’s husband was declared a prohibited immigrant and deported because he had defied the laws of the country by staying for a period in excess of five years without a valid residence permit. Further, that the respondent contended that the right to freedom of movement was not absolute, since it was subject to the public interest limitations stipulated in paragraph (a) of s 22(3) of the Constitution, so long as those restrictions are reasonably justifiable in an democratic society.
The court held that the applicant’s husband was declared a prohibited immigrant and deported because he had defied the laws of the country by staying for a period in excess of five years without a valid residence permit. He, in other words, breached the duty imposed on an alien to observe the laws of his host country and conduct himself in a manner compatible with the good order of the State. His conduct constituted a threat to public order. As indicated, it was the State’s interests in the light of such conduct that had to be balanced against the applicant’s entitlement to have her husband stay with her in Zimbabwe.
The admission of aliens into a State immediately called into existence certain correlative rights and duties. The alien had rights to the protection of the local law. He owed a duty to observe that law and assumed a relationship towards the State of his residence sometimes referred to as temporary allegiance.