Release Pakistani couple: High Court | The Herald April 8, 2016
THE High Court has ordered the release of a Pakistani couple accused of overstaying in the country, pending the determination of their appeal lodged with the Home Affairs ministry two years ago.
Muhammad Shabbir (50) and Rehana (48) were arrested and detained on an immigration warrant last month. Their permit expired in June 2014 and their application for an extension of residence permit was turned down by the chief immigration officer during the same month.
The couple’s attempt to have temporary permits pending the appeal was also declined.
They approached the High Court challenging the validity of their detention beyond the stipulated 48 hours in breach of the provisions of Section 50(2) of the Constitution.
They wanted an order for their immediate release with the chief immigration officer being ordered to issue the couple temporary permit pending the outcome of their appeal.
Justice Joseph Musakwa granted the application in the case in which the judge expressed shock as to why the appeal lodged in 2014 is still undetermined, two years later.
He ruled that in terms of the law a person who is detained for purposes of being brought to court must be availed before the court within 48 hours.
“In the result, a provisional order is issued to the effect that the applicants be released forthwith,” said Justice Musakwa.
“If a person is to be held beyond 48 hours regardless of any intention to bring them to court, such detention must be extended by a competent court before the expiry of the 48 hours.”
The judge said the fact that immigration intended to deport the applicants did not absolve them from complying with the need to have applicants’ detention beyond 48 hours extended by a competent court.
In opposing the application by the two Pakistan nationals, the immigration relied on Section 8(2) of the Immigration Act (Chapter 4:02).
They argued that the provision empowered an immigration officer to detain a prohibited person pending removal from Zimbabwe.
But the couple through their lawyers Kachere Legal Practitioners, argued that their detention of beyond 48 hours was in breach of Section 50 (2) of the Constitution.
The judge agreed with the submission and ruled that Section 8(2) of the Act was clearly in conflict with Section 50 of the Constitution.