Rex v Ali (Criminal Appeal No. 194 of 1947) [1947] EACA 70 (1 January 1947)

#### APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J., and BOURKE, J.

### REX, Respondent (Original Prosecutor)

# IBRAHIM-ALI, Appellant (Original Accused) Criminal Appeal No. 194 of 1947

Criminal law—Prohibited immigrant—Order to leave the Colony—Non-compliance with order—S. 8, Immigration Restriction Ordinance (Cap. 62).

The appellant was born in Italian Somaliland. He entered Kenya from Tanganyika without permission on 1st January, 1947. On the 8th January he found work with a local firm and continued in such employment at all material times at a salary of Sh. 250 per month. On 20th February he was interviewed by the Immigration Officer and required to deposit Sh. 200 as a safeguard that he should not become a public charge. He was unable to make the deposit and the Immigration Officer caused to be served upon him a notice stating that he was a prohibited immigrant and requiring him to leave the Colony within fourteen days. The time limit was subsequently extended, but the appellant failed to leave.

He was convicted of an offence contrary to S. 8 of the Immigration Restriction Ordinance (Cap. 62) and sentenced to pay a fine of Sh. 300 with three months' I. H. L. in default of payment.

He appealed.

"S. 5. The immigration into the Colony by land or sea of any person being or appearing to be of any of the classes defined by the following subsections (hereinafter called 'prohibited immigrant') is prohibited, that is to $\text{say}:$

(a) Any person without visible means of support or any person who is likely to become a pauper or a public charge".

"S. 8. Any prohibited immigrant making his way into or being found within the Colony may be ordered by the immigration officer to leave the Colony, and if such prohibited immigrant shall fail to leave the Colony within such time as may be considered reasonable by the immigration officer, he shall be guilty of an offence against this Ordinance. Any person convicted under this section may, in addition to liability to removal or otherwise, be imprisoned with or without hard labour for any term not exceeding six months. provided that such imprisonment shall cease if and when arrangements are made for the deportation of an offender from the Colony".

Held $(26-6-47)$ .—(1) The question whether a person is or is not a prohibited immigrant is a question of fact to be resolved upon the evidence. It is not one for the Immigration Officer to the exclusion of the Court.

(2) On the evidence that a matter of seven weeks after he entered the Colony the appellant was unable to produce Sh. 200, coupled with his failure to show that at the time of his entry he had any means whatsoever, the magistrate could have come to no other reasonable conclusion but that the appellant was a prohibited immigrant within the meaning of S. 5 $(a)$ of the Ordinance.

Appeal dismissed.

## D. V. Kapila for the Appellant.

### Phillips (Judicial Adviser) for the Crown.

JUDGMENT.—The appellant was charged before the Court of the Resident Magistrate, Nairobi, with an offence contrary to section 8 of the Immigration Restriction Ordinance (Cap. 62) in that being a prohibited immigrant and having

$v.$

made his way into the Colony he failed to leave within such time as was considered reasonable by the Immigration Officer. It was alleged that the appellant was a prohibited immigrant within the meaning of section 5 $(a)$ of the Ordinance as being or appearing to be a person without visible means of support or who is likely to become a pauper or a public charge.

It is not in dispute that the appellant, who told in evidence that he was born in Italian Somaliland, entered Kenya from Tanganyika without permission on the 1st January, 1947. It is evident that the Magistrate did not see fit to reject the testimony of the appellant that on the 8th January, 1947, he was taken into employment by the Express Transport Company and continued in such employment at a salary of Sh. 250 a month; the view taken by the Magistrate was that this circumstance could not affect the determination of the issue before the Court. On the 20th February the appellant was interviewed by Mr. Penfold, the Immigration Officer, and asked for a deposit of Sh. 200, which happens to be the amount fixed under section 11 (i) (a) of the Ordinance. In evidence, the Immigration Officer explained that he demanded this sum in order to prevent the appellant becoming a public charge and that it was his intention to deal with the case from the point of view of an illegal entry. However, whether or not he would have been disposed in his discretion or entitled at all in law to grant a "conditional permit to enter," under section 11 had the deposit been forthcoming when requested, is quite beside the matter for inquiry before the court of trial. The appellant was unable to make the deposit and the Immigration Officer formed the opinion that he was a person likely to become a public charge. On the same day Mr. Penfold issued and caused to be served upon the appellant an order in writing (Exhibit 1), in which it was recited that the appellant was unable to make a cash deposit of Sh. 200 when called upon to do so and that in exercise of the powers conferred by section 8 of the Ordinance he was declared to be a prohibited immigrant within the meaning of section 5 (a). There follows an order in terms directing the appellant to leave the $\frac{1}{2}$ Colony within fourteen days, and his attention is drawn to the sanction provided under section 8 should he fail to comply. On the 10th March the Immigration Officer varied his order by extending the time for compliance by a further ten days. On the 28th March the appellant was arrested in Nairobi and on the 26th April he was convicted of the offence as charged.

We find ourselves unable to agree with the learned Magistrate that the question whether a person is or is not a prohibited immigrant arising on a charge laid under section 8 is one for the Immigration Officer to the exclusion of the court if that is what is meant by the words occurring in the judgment: "It is not for the Court to go into the sufficiency of the Immigration Officer's belief". It is, as Crown Counsel concedes, a question of fact to be resolved upon the evidence. But we think it equally apparent that given a proper direction the Magistrate could have come to no other reasonable conclusion on the evidence he plainly accepted but that the appellant was a prohibited immigrant within the meaning of section 5 $(a)$ . There is the evidence that a matter of seven weeks after he entered the Colony the appellant was unable to produce the sum of Sh. 200 and he makes no attempt to show that at the time of his entry he had any means whatsoever. The main ground of appeal that has been urged is that the order of the Immigration Officer was unlawful because no time was given to the appellant to pay the deposit of Sh. 200. and that he could not be said to be a prohibited immigrant because he was in employment and receiving a salary of Sh. 250 a month. We can find no substance in this submission. There was no obligation upon the Immigration Officer to grant the appellant such time as might enable him to collect the sum of ten pounds; nor is it any test of whether a person is a prohibited immigrant that he has succeeded in obtaining paid employment after he has entered and is found within the Colony. The other grounds of appeal against the conviction are so palpably without merit that we do not find it necessary for the purposes of this judgment to deal specifically with them. We are not satisfied that the sentence is in any way excessive. The appeal is dismissed,