alexa LEGAL AID: How can I bring my twins back from the United Kingdom? - Daily Nation

LEGAL AID: How can I bring my twins back from the United Kingdom?

Wednesday December 18 2019

My children are now 10 years old and growing up isolated from their entire family in Kenya. PHOTO| FILE | NATION MEDIA GROUP

My children are now 10 years old and growing up isolated from their entire family in Kenya. PHOTO| FILE | NATION MEDIA GROUP 

ERIC MUKOYA
By ERIC MUKOYA
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Hello,

I have been reading your article on the Nation about the man whose daughter is supposed to relocate to the United States and the father has not given consent

My case is similar. I am sure you may have come across it in 2015 when there was some media attention on it.

Back in 2015, my twin boys Hussein and Farid were five years old and already relocated to the United Kingdom, their identities changed, and according to my Kenyan wife and the children's mother, they were all now claiming to be from Somalia so as to gain asylum and live off benefits and free housing in the UK as refugees.

I was not on board with this because first of all, it was illegal to fraudulently acquire asylum in UK using false documents and fake stories.

Most importantly, I did not give consent. We were legally married in 2007 and the marriage was never dissolved, even though now I am told she has remarried.

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Advise on the legality of this.

Four years on, the British have refused to respond to my communication as well as my lawyer's. I had requested to have my children registered as Kenyans through the foreign office and the British High Commission.

The Kenyan authorities have also gone quiet and apparently my case file was taken to ODPP in February 2016 but their office said they have no such case or anything like that.

The former British High commissioner, Dr Christian Turner, wrote me a letter on July 15, 2015 and promised to look into it and come up with a speedy resolution. That was four years ago. The next High Commissioner Nic Hailey told me when I met him that my wife had been questioned and admitted to be Kenyan.

From then on, I kept asking about the progress of my children's registration. On Twitter, he went ahead and blocked me and cut all communication with my lawyer and I. They also withdrew my visa application when they had no reason to cancel it, refunded my money and started to pretend I do not exist.

I have also written to the new High Commissioner, Jane Marriotte.

Now I need advice of on how I can go about suing the ODPP and British Government for what they have allowed to happen.My children are now 10 years old and growing up isolated from their entire family in Kenya.

Please advise on what rights fathers have in this country and if what I am asking for is unreasonable. 

Thanks,

Ali Omar

Dear Ali,

We are honoured our legal advice over the course of the year has precipitated the instant discourse. Be that as it may, your courage, consistency and determination to reunite with your family despite the seemingly insurmountable odds placed on your way cannot be gainsaid. In fact, many in similar positions would have given up by now. Your steadiness emboldens.

The challenge you face is unique since it transcends Kenya’s territorial borders, necessitating invocation of international law.

Closer home, your situation invites discussion of the following substantive issues:

i) refugee status determination and cancellation;

ii) what amounts to a valid marriage;

iii) parental rights and responsibilities;

iv) enforcement of fundamental freedoms and rights; and

v) an individual’s capacity to institute legal proceedings against a Sovereign State.

You mention that your wife and children relocated to the UK back in 2015 and fraudulently obtained refugee status to secure comfortable lives. Therein lies the key to solving all your problems.

Under international law, refugee status may be lost if it is proved that, such status was obtained fraudulently with regard to the core aspects relating to eligibility. Cancellation in itself is not automatic, since the burden of proof lies on the person making the allegation. In this case, you.

In addition, refugee legislations vary from one country to the other. The underlying principle, however, is that caution and discretion ought to be exercised before cancellation of refugee status.

Assuming cancellation of refugee status is effected, a number of variables arise depending on the legal provisions of the host country.

i) The affected party or parties can immediately be removed from the host country;

ii) affected party or parties can be afforded stay of execution, if at all they hold permits authorizing their continued stay, which normally remains in effect unless the same is cancelled through a separate process; and

iii) where children are involved, international law obligates host Countries to act in their (children) best interest.

You’ve questioned the legality of your wife’s second marriage. Indeed, Matrimonial Causes Act of 1973, which governs marriage in England and Wales provides that, a marriage is void or does not exist abinitio if at the time of marriage either party was lawfully married.

For the marriage to be declared a nullity, you will be required to file a physical petition in UK which is a tough call considering your visa has been revoked.

As a parent, parental responsibility begins with registration of birth of a child. You mention that, your attempts to register your children as Kenyans have fallen on deaf ears. The registration process depends on your ability to demonstrate paternity and marriage to your former wife which again has been handicapped by new status of your wife and children.

The Constitution of Kenya 2010 guarantees every Kenyan rights and fundamental freedoms as espoused in Chapter four. In the event of breach, denial, infringement, or violation, you can file a petition at the Constitution and Human Rights division of the High Court seeking redress.

So, as to whether you can sue the Office of the Director of Public Prosecution, the answer is yes, provided the suit therein is sound and good in law. Otherwise you risk being slapped with cost of the suit, which might dent your financial position significantly.

However, you cannot subject a Sovereign State, in this case, the British High Commission to Kenya’s judicial system, unless UK waives that right.  On the flipside, you can sue individuals working at the British High Commission, in their own country, provided, their acts or omissions fell outside the purview of privileges and diplomatic immunity.

Your remedy is diplomacy. Through your team, you can write to Kenya’s Ministry of Foreign affairs and request intervention on your behalf.

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