One of the most dangerous laws ever seen in this country’s recent history has made its way into our statute book: the Immigration Act 2022. The dangerous bill presented in parliament became an act in a rather disconcerting indifference. We talk to LALIT’s Lindsey Collen, who is bravely challenging it in court with her lawyers, about the contents of the law and why it is dangerous for almost every Mauritian family…

As soon as the Immigration Act 2022 was enacted by Government, you started challenging it in court. What exactly are you objecting to in this law?
Yes, I was in the Supreme Court on Thursday, to challenge the new Immigration Act and its amendment to the Mauritius Citizenship Act. Anyone is free, and should be, to marry the person of their choice, as are their children and other relatives, and to live in the country of either spouse. I was in court together with 36 people – who all came in solidarity. It was very heart-warming.

It’s good that you had such a support though the law affects few people, doesn’t it?
In fact, this new law affects, and can affect, literally any Mauritian, and does affect all Mauritian extended families. I say this from the get-go because most people don’t think the law affects them personally. But, it could, and it does. With generations of people having studied or worked abroad, and generations of youngsters coming and working in Mauritius, we almost all have at least one relative who is married to someone from abroad, or could soon be. Mauritius even had a minister of emigration and successive governments send laureates of marrying age abroad, organise circular migration and so on. So, gradually, we are all affected. And, as right-wing xenophobic parties come to power in countries like Italy, and get stronger in France, the UK and elsewhere, Mauritians living with their spouses abroad might need or prefer to live here. We all need this freedom to marry who we want to and to live in either spouse’s country in security.

Before coming to the details of the case, itself, what about your personal situation relative to this law?
When Ram Seegobin, a Mauritian, and I, a South African, met and got married, we were both living in London. For the first 21 years of our life together, I was already in exile from Apartheid South Africa for political reasons. Being in exile is not easy. And, in addition, Ram and I couldn’t together visit my parents there, even if I were not in exile, because of repressive Apartheid laws that forbad our marriage. So my mother and father came over to London to see us. We decided in 1974 to live in Mauritius and I only ever saw my mother again when I went to be at her bedside as she lay dying. Ram could not come with me. Ram and I only went to South Africa together, and visited my father in 1994 after the Nelson Mandela government came to power and Apartheid was over.

And when did you become a Mauritian citizen?
As from 1986, through marriage to Ram.

And you have lived happily ever after?
Until 2022, 28 years after South Africa’s liberation from Apartheid, when the Mauritian Government has changed the laws here so that my Mauritian citizenship can be stripped from me, like the citizenship of any other person married to a Mauritian can be. It is a very precarious situation to live in. The insecurity is obvious. Other clauses of the same law also assure that the right to residence has been abolished and converted instead to a “permit” system. So, stripped of my citizenship, I would be easily stripped of my residence here. That puts Ram and I in an even more precarious situation. So, it is as though 28 years later, we are once again under the similar cloud of repressive law to that of the Apartheid laws, a law that can once again threaten our marriage and our hearth. And it is, of course, not only me. So, I have lodged the case for all of us.

‘’This law isn’t consistent with natural justice, and is probably contrary to the essence of justice itself. It interferes with the powers of the judiciary under the doctrine of separation of powers.”

Your petition is therefore based on your personal situation, isn’t it?
Yes. One part of it is the technical part, explaining where I was born, when we were married, when a resident, when a citizen and so on. The other part is a description of my contribution as a citizen in Mauritius in the public sphere – the sphere in which citizenship is expressed – in associations, unions and the political party LALIT. It includes mention of how, precisely because I am a citizen of Mauritius, I qualified to be considered for various literary prizes, and so on. The case aims to make visible what it means when a citizen can be arbitrarily banished from her country. We get banished from our own memories.

What exactly are the points you are challenging?
There is, in particular, a clause that empowers the prime minister, and of course any future prime minister, to “in his absolute discretion and without giving any reason, deprive any person of his citizenship of Mauritius …” without any right of appeal to the judiciary, or to anyone. The person would thus be banished. Their family torn apart. This could happen to literally any family in Mauritius. I am challenging this power given to the Executive as inconsistent with many concepts in the constitution. My case, if we look at it broadly, is about the very definition of what a “country”, our country, is. A country is after all two things: its territory, land and sea, flora and fauna – we still have a dispute with the UK over Chagos, and another with France over Tromelin, as well as one with Maldives over the Blenheim Reef, all left over from colonisation – and a country is also its people: those who reside here, those who are citizens here, and those who happen to be here, who all have rights. That is what a country is: its territory and its people, who enjoy rights. And it is within a country that we, human beings, so far, have our rights – gains from previous generations’ struggles – enshrined and codified in laws, like the constitution. Rights under the Mauritian constitution are enforceable. So, this is the reason I am contesting part of the Immigration Act and the Mauritius Citizenship Act so that we all remain free to marry a person of our choice and live in the country one of them comes from, build a hearth, set up a home, become a family, and if we become citizens, we then participate, in the life of a citizen of the country.

You say in your plaint that this new law is not consistent with the constitution. Isn’t it?
No. It isn’t even consistent with natural justice, and is probably contrary to the essence of justice itself. It interferes with the powers of the judiciary under the doctrine of separation of powers. Mauritius is a democratic state, the constitution says. And people have the protection of the law, it says. Citizens have the freedom to move in and out of the country. We are protected from discrimination on the basis of place of origin. Spouses are entitled by the constitution to apply for citizenship, and once they get citizenship, this has a meaning. So, all these points are part of the case.

And you feel affected by this law, don’t you?
Yes, under two sections of the constitution (17 and 83), someone affected or who may be affected by law can put in a case. I only had three months to meet the legal deadline to lodge a case – from the moment the law came into effect, that is to say from 27 July. On 30 September, with the assistance of Attorney Ayesha Jeewa and two Barristers Antoine Domingue SC and Jean-Claude Bibi, all working pro bono because they believe in the case, I lodged a “Plaint with Summons”, as it is called. So, we summoned the government “to show cause why judgment should not be delivered against” it on Thursday in court. Attorney Jeewa requested an early date and the case has been fixed for 8 December.

What are you hoping to achieve?
There are three usual ways to win a change in the law. Firstly, we can get the government to repeal the offending clauses. That would be ideal. And that is why it is important for everyone to find out about this law and to stand up and oppose it. Or, secondly, we can win the changes by convincing enough political parties – and we often have to do this by convincing ordinary people before or at the same time so that they put enough pressure, in turn, on the political parties – to promise in their electoral programme to do so. When they get elected, they can be made to respect their programme. This was how in 1983, the MMM-PSM government finally amended the old Immigration Act that discriminated against Mauritian women married to men from abroad by not according the men the right to residence. The women’s movement organised and supported Shirin Aumeeruddy’s case before the International Committee on Civil and Political Rights which we won. Or, thirdly, the Supreme Court can declare the clauses “void” to the extent that they are inconsistent with the constitution.

What other recourse do you have should your petition not be entertained by the Supreme Court?
All struggles to change laws are essentially political struggles. A legal challenge like this one is an important addition to political struggles. If it fails, and the courts end up upholding the clauses we are opposing, then we will continue the on-going political challenge. The issue of freedom to marry and live with one’s spouse is, after all, part of a programme within the overall political struggle for more free dom. All our freedoms – from the time of most of us being enslaved, then indentured, to now when we are still, truth be told, no more than wage slaves – are won by constant struggle. There is no short-cut. And, this is indeed the joy of life: to contribute with other people towards throwing chains off us all.

It’s a difficult case, isn’t it?
It is, in some ways, difficult. For a start because there are other parts of the new legal framework that also need revocation not just the power of the prime minister to strip a citizen of their citizenship.

Another difficulty is the locus standi. In Mauritius, unlike in many other countries, it is difficult to establish, isn’t it? How confident are you that you will have the locus standi required for your petition to make it to court?
Yes, we can expect the State to perhaps bring up the issue of locus standi, meaning what right have I to put the case. But the constitution in Section 83 says, if a person’s “interests are being or are likely to be affected by such contravention … that person may apply to the Supreme Court” for redress. And section 17 says something similar referring to a person’s “rights”. I do believe my freedoms are being contravened and could be further, much more drastically, contravened in the future.

There are similarities between the law you are challenging and the Immigration Amendment Act, aren’t there? The Immigration Amendment Act went through unchallenged and made its first victim in the person of Patrick Hofman. Are you worried there might be similar victims of this act? Have you had a chance to speak to Hofman?
No, I have not met him in person, but I know he is in Mauritius for his case against Air Mauritius for damages. He was in court, by coincidence, just the day before I was. He was an Air Mauritius pilot for 14 years – and I know how hard all the staff on board Air Mauritius work because my brother was for many years an Air Mauritius captain. Mr. Hofman, after working for 14 years, was summarily dismissed. He was also, importantly, a trade union leader. He was president of his union, and there was an industrial dispute going on about the increase of work hours for new pilots being recruited. He and other pilots took sick leave around the same time. He was not only dismissed, but he was declared a prohibited immigrant by the prime minister. This was, as I understand it, almost immediately after the Immigration Amendment Act of 2019 gave the prime minister the power to do such a thing. Mr. Hofman could then not get residence in Mauritius, although he married a Mauritian, Isabelle l’Olive, who had been his partner for years and years, and who has since, tragically, died young. At the time, we in the Muvman Liberasyon Fam publicly expressed our solidarity with Isabelle l’Olive and her husband, Mr. Hofman. He is a brave man.

What if you lose this case?
If I lose the case, there is the possibility of an appeal to the Privy Council, though, this is costly. So, going to court is one of the ways.