Wakilii

Nasaka v Attorney General & Anor (Misc. Cause No. 0179 of 2015)

High Court · [2016] UGHCCD 40 · 2016 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Minister's rejection of entry permit appeal under Uganda Citizenship and Immigration Control Act s.60(7)
Decision
Appeal dismissed and deportation order upheld

Observed later treatment

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Holding

The High Court has jurisdiction to hear appeals from ministerial deportation orders under s.60(7) of the Immigration Act and to adjudicate matters arising under the East African Common Market Protocol, which was domesticated by the East African Community Act 2002. However, free movement of workers under the Protocol is governed by Annex 5, which lists specific professions eligible for liberalisation. An Executive Housekeeper does not fall within the liberalised professions in Annex 5, including Management Consulting Services, and therefore the Minister correctly determined the appellant was not entitled to work freely in Uganda under the Protocol.

Outcome

Appeal dismissed and deportation order upheld

Facts

The appellant, a Kenyan national and professional hotelier, was employed by Sheraton Hotel Kampala as an Executive Housekeeper. She applied for an entry permit from the Immigration Department, which was initially deferred and later rejected by the Immigration Board on 1 July 2015 on grounds that skills were locally available. The appellant appealed to the Minister who rejected her appeal on 17 November 2015, stating that her profession did not fall under areas where persons can work freely under the East African Community Protocol. The appellant was threatened with deportation and filed an appeal to the High Court under s.60(7) of the Immigration Act, arguing that as an EAC citizen she was entitled to provide services under the Common Market Protocol and that the Minister's decision was discriminatory and contradicted the Protocol's objectives on free movement of labour.

Issues

  1. Whether the court has jurisdiction to entertain the matter.
  2. Whether the appellant's skills and experience are locally available.
  3. Whether the appellant is entitled to work in Uganda under the East African Common Market Protocol.
  4. What remedies are available to the parties.

Orders

  • Appeal dismissed.
  • The Minister's decision of 17 November 2015 rejecting the appellant's appeal is upheld.
  • The appellant's application to set aside the deportation order is refused.

Rules and key headnotes

Immigration — Appeals — Ministerial Deportation Orders — High Court Jurisdiction
The High Court has unlimited original jurisdiction to hear and determine appeals from the Minister's decision to reject an entry permit appeal and issue a deportation order under s.60(7) and (8) of the Uganda Citizenship and Immigration Control Act Cap.66.
Administrative Law — East African Community Protocol — Domestication — Justiciability
The Treaty for the Establishment of the East African Community and protocols made thereunder are justiciable in Ugandan courts because the treaty was domesticated through the East African Community Act 13 of 2002, and Uganda is therefore bound by its provisions.
Constitutional Law — Free Movement of Workers — East African Common Market Protocol — Scope of Liberalisation
Free movement of workers and services under the East African Common Market Protocol is regulated by Annex 5 to the Protocol, which specifies the schedule of commitments on progressive liberalisation of services. Only professions listed in Annex 5 are liberalised for free movement within partner states.
Statutory Interpretation — Treaty Annexes — Express Enumeration — Exclusion of Unlisted Professions
Where a treaty annex expressly enumerates specific professions eligible for liberalisation, professions not listed in the annex are excluded from the scope of free movement provisions. Courts cannot expand the scope of an annex through purposive interpretation to include professions the drafters did not expressly include.
Immigration — Work Permits — Classification of Professions — Executive Housekeeper
An Executive Housekeeper does not fall within the category of Management Consulting Services under Annex 5 of the East African Common Market Protocol. Without evidence of the job description showing consultancy functions, a court cannot assume that housekeeping duties constitute management consultancy.
Administrative Law — Affidavit Evidence — Hearsay — Severance
Where an affidavit contains both hearsay statements and matters within the deponent's own knowledge, a court has power to sever the hearsay portions and consider only those parts within the deponent's knowledge, rather than striking out the entire affidavit.

Legislation cited (14)

  • Civil Procedure Act s.98
  • Uganda Citizenship and Immigration Control Act Cap.66 s.60(7)
  • Uganda Citizenship and Immigration Control Act Cap.66 s.60(8)
  • Civil Procedure Rules O.43 r.2
  • Civil Procedure Rules O.43 r.3
  • Civil Procedure Rules O.43 r.5
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.52 r.3
  • Civil Procedure Rules O.19 r.3
  • East African Community Act 13 of 2002
  • Treaty for the Establishment of the East African Community Art.76
  • Treaty for the Establishment of the East African Community Art.151
  • Protocol on the East African Common Market Art.5(2)(c)
  • Protocol on the East African Common Market Art.10

Cases cited (1)

  • Besigye v Museveni (Election Petition No. 01 of 2001)

Full judgment

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Nasaka v Attorney General & Anor (Misc. Cause No. 0179 of 2015) [2016] UGHCCD 40 (27 June 2016)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.