Does a foreign spouse lose citizenship in divorce?

Dear Eric,

Thanks for the wise legal advice you give to Kenyans; I find it enriching. My dilemma is whether a foreigner married to a Kenyan who has acquired citizenship by marriage loses citizenship after divorce?

 Regards,

Benjamin

Hey,

Benjamin, the law creates and defines the institution of marriage where citizens marry foreigners and, under such marriages, acquire citizenship, if they so opt. It should be understood that marriage, dissolution, and citizenship are legal constructs conspicuously unrelated in every sense of process and purpose.

Besides the authority of the accompanying law, the rights of people and institutions are provided by the Constitution. Such rights and powers can only be derogated or revoked under given circumstances that the law must provide. Article 2 (1) of the Constitution provides for its supremacy.

It states this Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. This is the foundational principle that guides processes, operations, practices and laws of all institutions and persons on the matter of marriage, its annulment and citizenship in the context of a foreign spouse.

Male and female spouses of foreign origin have an opportunity to become Kenyan citizens. The law supports them, as guided by the immigration system. If the Kenyan is female, their husbands would have to gain citizenship through registration.

If the opposite prevails, then the wife acquires citizenship through naturalisation. However, both processes require formalisation since citizenship is open to contest by either an aggrieved party or state.

The formalisation process found at Section 11 of the Kenya Citizens and Immigration Act of 2012 demands that the applicant provides a copy of a valid marriage certificate, joint affidavit of wife and husband confirming their marriage and such request for citizenship, passport size pictures of both spouses, copy of the birth certificate of the Kenyan spouse and proof of citizenship of the country of origin.

It should be remembered that marriage and hence its dissolution is premised on Article 45 (2) of the Constitution, which states that each adult has the right to marry a person of the opposite sex, based on their consent. It is expected, therefore, for the Kenyan law to canvass divorce over marriages that speak to Article 45 (2) of the Constitution.

It is assumed that if one acquired citizenship having fulfilled the conditions set out in Section 11 of the Immigration Act, then this process separates citizenship from marriage altogether.

If the law was to apply its powers to renounce a person’s citizenship, who acquired it either by naturalisation or registration, it would reflect two things. First will be facts that remained undiscovered before awarding citizenship. The second will be events that emerge during the existence of the acquired citizenship that offends the law and the country’s national interests. Given, Article 17 of the Constitution provides conditions that may inspire revocation of such citizenship: if the person acquired citizenship by fraud, false representation or concealment of any material fact: if the person has, during any war in which Kenya was engaged, unlawfully traded or communicated with an enemy or been involved in or associated with any business that was knowingly carried on in such a manner as to assist an enemy in that war: if the person has, within five years after registration, been convicted of an offence and sentenced to imprisonment for a term of three years or longer: and if the person has, at any time after registration, been convicted of treason, or of an offence for which, a penalty of at least seven years imprisonment may be imposed; or a more severe penalty may be imposed.

This situation is best demonstrated by the case of R (on the application of Hysaj, Bakijasi and others) v Secretary of State for the Home Department in the Supreme Court of the United Kingdom.

In addition to the aforementioned factors, it should be recalled that such marriages do not qualify for citizenship of a foreign spouse unless the union has survived seven years, as indicated in Article 15 (1) of the Constitution.

 Suppose the marriage was solemnised in another jurisdiction, other than Kenya. In that case, such marriage should, in accordance with Section 58 of the Marriage Act of 2014, be registered through an application by the couple accompanied with a relevant marriage certificate or other proof of the union. There has been contestation that the law is unfair not to award citizenship quickly or in the shortest time possible.

However, mischief continues to rear its head in such matters, where Kenyans marry or marry foreigners. It has been recognised that sometimes it is not loved for better or worse, but more significant chances of accessing and exploiting socio-economic opportunities.

In some settings, the inspiration has been for those who run syndicates of illicit trade in persons, profiteering from cheap labour and proliferation of international commercially exploitative sex. Yes, it is possible for one’s citizenship to be revoked during marriage and even after divorce. The law hates dishonesty, fraud and non-disclosure of material facts as regards the citizenship application in the first place.

Eric Mukoya has over 17 years of experience working in Kenya and abroad within the social justice sector. He’s the executive director of the UnduguSociety of Kenya. Legal query? Email [email protected]