The Immigration Status In Kenya Of A Foreign Dependant Widow/widower Upon The Demise Of Their Spouse

Introduction

The Citizenship and Immigration Act, 2011 laws of Kenya (the “Act”) defines a dependant as a person who by reason of age, disability or any status of incapacity is unable to maintain himself or herself adequately and relies on another person. Under the Act and the underpinning Regulations (the “Regulations”), any person being either a Kenyan citizen, a permanent resident in Kenya, an accredited diplomatic/foreign envoy to Kenya or a person to whom a valid work permit has been issued may apply for a dependant pass for his spouse, children or any other person who depends on them for their livelihood. Upon being satisfied that the applicant has sufficient income to maintain and continue to maintain the dependant during their stay in Kenya, the Immigration Department shall issue a dependant pass to the named dependant.

Invalidation of a Dependant Pass

To set the background for the ensuing discussion, it is important to understand the circumstances under which a dependant pass may be invalidated. Under Paragraph 28(1) of the Regulations, a dependant pass may be invalidated where:-

1. the dependent has ceased to depend on the applicant;
2. the person who applied for the dependant’s pass has failed or is unable to maintain the dependant;
3. the person who applied for the dependant’s pass has left Kenya in circumstances which raise a reasonable presumption that his or her absence will not be temporary;
4. the dependant engages in employment or other income generating activity;
5. the permanent residence status of the applicant ceases;
6. the applicant dies; or
7. the dependant was a child, the dependant attains the age of twenty-one years.

For this article, we highlight the case for widows and widowers who are holders of dependant passes upon the demise of their spouse being their primary benefactor.

The Case for Widows and Widowers upon the death of a spouse

As aforementioned, a dependant pass is automatically invalidated upon the demise of the applicant/benefactor. This is no exception for widows and widowers upon the passing on of their spouse. This then leaves the bereaved spouse in a precarious position being present in Kenya without lawful status at the risk of being deported and other criminal sanctions not to mention the emotional anguish inflicted by such unfortunate turn of events. As such, the bereaved spouse must urgently initiate appropriate processes to obtain lawful status. In this Article, we shall explore the options available to the bereaved spouse.

Application for Kenyan Citizenship by a Widow/Widower

Section 12 of the Act provides that a foreign national who has been married to a Kenyan Citizen, who but for the death of their spouse would have been entitled to be registered as a Kenyan Citizen by marriage after a period of Seven (7) years is deemed to be lawfully resident in Kenya for the remainder of the seven years and shall be eligible for Kenyan citizenship by marriage upon the expiry of the seven years subject to meeting all the other prescribed requirements for citizenship by marriage. It is important to note that the Act provides that should the widow/widower get remarried to a non -Kenyan Citizen before the expiry of the seven years period, he/she shall not be entitled to acquire citizenship under this category.

Application of Permanent Residence by a Widow/Widower

Although there is no express provision under the Act and related laws providing for application of permanent residence by a bereaved spouse who would were it not for the demise of their spouse be entitled to permanent residence by marriage; the Immigration Department at the discretion of the Director of Immigration Services ordinarily allows the bereaved spouse to apply for permanent residence. In this case, the bereaved spouse must meet all the other prescribed requirements for permanent residence by marriage.

Application for Relevant Work Permit

Another option available to the bereaved spouse is the application for relevant work permit subject to the provisions of the Act and the Regulations. Should the said spouse seek employment in Kenya, a Class D work permit would apply. Should they set up an enterprise and invest in Kenya, any of the work permits in Class A,B, C,F and G would apply depending on the sector/industry of investment. The spouse may also apply for a Class K work permit available to person over the age of thirty-five years with an assured annual income of not less that 24,000 USD subject to the prescribed requirements. In addition to this, the widow/widower who has been the holder of a valid work permit for a continuous period of seven (7) years may apply for Kenyan citizenship by registration or permanent residence as the case may be.

Conclusion

At CM Advocates LLP, we offer bespoke world class legal services concerning all your immigration, labour and employment matters. We are practical and innovative in our approach and offer quick turnaround timelines. We will be delighted to receive your feedback and enquiries on this and any other of our articles. In case of any queries and or if in need of any clarification, do not hesitate to contact the undersigned or route your queries through immigration@cmadvocates.com and +254716209673.