KATHMANDU, FEBRUARY 10
The Supreme Court has ordered the Department of Immigration and Prison Office to release a German national who was jailed for overstaying visa.
The order was issued by a division bench of justices Ananda Mohan Bhattarai and Sapana Pradhan Malla in response to a habeas corpus petition filed by Public Defender Society of Nepal on behalf of German national Manfred August Neumann, who had been languishing in jail for the past three years and 10 months for overstaying visa. Neumann was released from jail today but was told by DoI to appear before it on Sunday.
The SC ruled that the punishment imposed by the DG of Department of Immigration was illegal. Neumann has been living in Nepal since 1987 after marrying a Nepali national Chhali Kami. Kami died in 2011. He has a son who lives in Europe.
DoI imposed a fine of $11,950 on Neumann for overstaying by 2,390 days in Nepal.
He was sent to prison for four years and 167 days for failing to pay the fine. DoI had imposed five US dollars on Neumann for every day he overstayed.
DoI considered Neumann's stay in Nepal legal until 14 September 2012. Executive Director of PDS Nepal Ajay Shankar Jha told THT that Neumann, who had applied for visa extension requesting DoI to treat him differently as he had ties with Nepal, was awaiting response from government authorities when he was arrested by the DoI.
The SC ruled that the DoI did not follow due process, particularly the right to seek advice from legal counsel and the right of fair trial guaranteed by the constitution.
According to Section 3(1) of the Immigration Act, overstaying is considered an offence and the director general is authorised to impose fines up to Rs 50,000. However, the Supreme Court found that the Immigration Department took decision to impose fine on the German national without the consent of the government attorney, which is required under the provisions of Section 12 of the Immigration Act.
Jha said the landmark order would have significant impli-cations for the enforcement of immigration laws in Nepal and was a victory for those who believe in the importance of due process and the rule of law. He said Neumann, who had business in Nepal, incurred huge loss because of his incarceration and the government should be compelled to provide compensation in such cases. "Ignorance of law is not excused for common people and the same should apply to government bodies and officials as well," he said.
The bench observed that the DG, DoI imposed Rs 50,000 fine on the German national (in addition to the $5 fine for each day of his overstay) on the basis of a note submitted by lower staff without the DG seeking the opinion of a government attorney.
The bench observed that Neumann was neither told what punishment he would face for overstaying his visa nor was he given a chance to defend himself.
The court observed that the DG of DoI did not seek a government attorney's opinion as required by Section 8 (3) of the Immigration Act.
Article 20, which grants a person the right to seek legal advice from an attorney and the right to fair trial, was not followed in Neumann's case, the SC observed. The court said the DoI did not take note of Article 158 (2) of the constitution that stipulated that the government attorneys would defend the government in cases where the government is plaintiff.
Stating that since the German national who had married a Nepali national has been living in Nepal for the past 35 years, the government should take appropriate decision if he applied for tourist or non-tourist visa. The court also ordered the government to take a humane decision if the German national wanted to repatriate his property to his home country allowing him enough time for the same.
According to the case file, Neumann was jailed for four years and 167 days on 7 April 2019. Neumann had stated in his petition that he had asked DoI to decide his case differently as he had been living with his Nepali spouse in Nepal for almost 35 years and he had his own business to take care of. He also pleaded that he was entitled to inherit his wife's property.
The DoI did not follow due process, particularly the right to seek advice from legal counsel and the right to fair trial guaranteed by the constitution
A version of this article appears in the print on February 11, 2023, of The Himalayan Times.
