Harare — THE High Court has ordered a Nigerian to pay US$3 000 surety before he is released from prison and allowed to appeal against his deportation.

Chioke Chinedu who is married to a Zimbabwean woman Rosemary Chikowore-Chinedu was arrested, two weeks ago, for overstaying without authority from the immigration department.

But he challenged the move to deport him claiming a breach of law.

Justice Bharat Patel after hearing an urgent chamber application filed by the defence led by Advocate Thabani Mpofu ordered the immigration officials to release Chinedu and his wife deposited the surety, as set by the court before the former is released.

The judge also ordered that the couple should institute an application at the same court before close of business tomorrow seeking a declaratory order relating to Chinedu's status in terms of Section 22 of the Constitution.

The couple is listed as applicants in the case in which they cited principal immigration officer a Mr Sibanda and chief immigration officer Mr Clemence Masango as respondents.

"The first and second respondents shall upon release of second applicant (Chinedu) from custody issue to him a temporary permit authorising his stay in Zimbabwe.

"The first and second respondents be and are hereby interdicted from deporting the second applicant from Zimbabwe pending the determination of the application to be instituted by the applicants before this court," read part of Justice Patel's order.

Adv Mpofu had applied on Monday at the High Court for an order seeking an interdict against his deportation on the grounds that his marriage to the Zimbabwean citizen gives him the right to remain in the country.

He argued that Chinedu was married to a Zimbabwean citizen and the wife in exercising her rights in terms of Section 22 of the Constitution of Zimbabwe has right to freely reside in any part of the country.

If her alien husband is required to leave the country she can in terms of the law petition the courts for an order stopping the deportation.

This, she can do on the basis that once her husband is deported she would be forced to move out of the country to follow her husband and so her rights to freely reside in the country would be breached.

But the immigration authorities represent by the Civil Division in the Attorney General's Office argued that the marriage of the two was one of convenience and that a Zimbabwean citizen has no such right, which accrues to an alien.

Mr Oscar Gasva of Chinyama and Partners instructed Adv Mpofu in the matter.