New Conditions For Visa-Free Entry Into Kenya

All passengers getting into the country will be subjected to advance screening using the Electronic Travel Authorisation if a proposed amendment to the law is enacted.

The Ministry of Interior has proposed a Bill, The Kenya Citizenship and Immigration (Amendment) Regulations, 2023 that seeks to amend the principal regulations by introducing advance passenger information (API) and to secure the data.

According to the Bill, API means the biographic data of a passenger or crew member and the flight details of an aircraft operator and other relevant details, against security databases before they even arrive in the country.

The proposed changes, introducing prescreening, follow President William Ruto’s announcement of visa-free entry to Kenya.

The airlines or agents will play a key role in providing information and where access to specific API is necessary to respond to a threat, the aircraft operator will supply accurate data to the director of Immigration.

If the information is found to be erroneous, faulty or misleading, the airline shall be liable to pay an administrative penalty of USD10,000 (Sh1.57million).

“An administrative penalty shall not be payable where the aircraft operator or pilot in command of the aircraft satisfies the director that the contravention was not made knowingly or recklessly,” the regulations state.

Immigration process

The amendment also seeks to digitise immigration processes and integrate border services to enhance efficiency, improve security measures, facilitate a streamlined travel experience, and ensure security.

The Regulations seeks to amend the principal regulations, the Kenya Citizenship and Immigration Regulations, 2012 by, for example, deleting the word “visa” and substituting it with the words “Electronic Travel Authorisation”.

According to the regulations, each person intending to travel into the country shall apply to the Director for ETA through the electronic portal and be in possession of the Authorisation before embarking.

However, possession of an Electronic Travel Authorization shall not constitute final authority to enter the country.

Each carrier coming into the country shall not on-board a passenger who does not hold a valid ETA.

The captain in charge of a carrier shall be responsible for ensuring that each passenger on board the aircraft holds a valid Electronic Travel Authorisation.

Country of origin

Any carrier that brings into Kenya a person who does not hold a valid ETA shall return that passenger to his or her last port of call or country of origin.

“Each carrier entering into Kenya or its operator or agent shall submit advance passenger information (API) and passenger Name record (PNR) to the director,” the regulations state.

For the purposes of carrying out assessment under these regulations, an Immigration officer may compare API or data against databases of persons sought or under alert watch list, including criminal deportees, suspected terrorists and other persons of interest to the intelligence community.

The officers shall handle the data exclusively within a secure location within Kenya, and all information will be processed in accordance with the provisions of the Data Protection Act, 2019.

Where an Immigration Officer determines that a passenger should be subject to further examination, he or she will give the control agencies -Directorate of Criminal Investigations, Anti-Narcotics Unit, Transnational organized Crime Unit, Antiterrorism Police Unit, National Intelligence Service (NIS), Kenya Revenue Authority (KRA) Customs, or the Port Health -the information.

The Director shall, six months after taking possession of API and passenger data, render the data elements unreadable to other people, commonly referring to as depersonalising.

The Director may however reverse the depersonalisation of data where such reversal is necessary for the purpose of preventing, detecting, investigating or prosecuting an offence.

The specified offences include terrorism; participation in a criminal organization; trafficking in human beings; sexual offences, including exploitation of children and child pornography; illicit trafficking in narcotic drugs, weapons and explosives; corruption; fraud; and laundering of the proceeds of crime.

Others are cybercrime; forgery of administrative documents; crimes within the jurisdiction of the International Criminal Court; unlawful seizure of aircraft; piracy; sabotage; and industrial espionage The data shall be kept for a period of five years.

Any visa that has been granted before the amendment shall remain valid for its unexpired period except where it is otherwise revoked in accordance with the provisions of the Act.

DATA NEEDED

According to the regulations, the API data elements relating to flight (header data) will include flight identification, scheduled departure date and time, and scheduled arrival date and time.

The information about the passenger and crew members on board include official travel document number; issuing state or organisation of the official travel document; official travel document type and expiry date; names, nationality, date of birth and gender; visa number, date and place of issuance; and primary residence among others.