Immigration Cases in Nepal : Investigation Procedure, Trial, and Punishment

The Immigration Act, 2049 (1992) ("Act") provides the primary legal framework for regulating the entry, stay, departure, and related processes for foreign nationals in Nepal, as well as the management of Nepali citizens travel. The Act aims to control immigration, prevent violations, and ensure orderly border management. 

The act aims to regulate the entry, stay, and departure of foreigners, manage the arrival and departure of Nepali Citizens and prescribe offences, investigation procedures, prosecution, and penalties. 

The Department of Immigration that operates under the Ministry of Home Affairs serves as the principal implementing authority, operating through various Immigration Offices across Nepal. Supporting regulations include the Immigration Rules, 2051 (1994) ("Rule") and Immigration Procedures, 2065 (2009) ("Procedure").

This article outlines the legal process for immigration cases, incorporating relevant sections of the Act.

The Immigration Act criminalizes specific violations such as use of fake/forged documents, illegal entry/stay, breach of visa/permit etc. which are regulated through the act and the procedure. 

2.1. Using Fake or Forged Documents 

        As per Section 5 of the act, the following acts are considered as offence;

• Provide false information regarding name, age, nationality, or other details, or make false statements.

• Use or cause to be used a forged/fake passport or visa.

• Enter, stay in, or depart from Nepal using fake documents.

    Note: This applies to individuals and those assisting others in such fraud.

2.2. Facilitating Illegal Entry or Stay

According to Section 5(3) of the act, it is an offence to facilitate the entry, stay, or departure of a foreigner without valid documents issued by competent authorities of     their state. This targets human smugglers, illegal agents, and organized networks.

2.3. Breach of Visa or Permit Conditions   

Section 4 of the act clearly prescribes that the foreigners must adhere to visa conditions,permit requirements, and other obligations under the Act and Rules. Violations can lead to administrative actions i.e. fines, visa cancellation, deportation, or criminal proceedings depending on severity.

Immigration offences are investigated directly by the Department of Immigration, distinct from Nepal Police investigations. The procedure regarding the regulation of the immigration cases in Nepal will be as stipulated in Schedule 6 of the Procedure. The procedure for the same is as mentioned;

Punishment regarding the Immigration Offences are regulated under Section 10 of the Act.

In addition to criminal penalties, the Director General with the approval of the Government may order deportation and impose re-entry bans i.e. either permanent or temporary under relevant provisions. For e.g., post-investigation authority, previously involving the Home Secretary in some contexts. Deportation can follow or accompany imprisonment/fines.

Please note that the foreigners must bear related expenses and comply with departure requirements.

The duration of immigration related criminal proceedings depends on the complexity of the case, the nature of the allegations, and whether the accused admits or contests the charges. While the investigation stage is generally completed within the statutory time limit, contested matters typically require a longer period due to the evidentiary and procedural requirements involved. The indicative timeline is as follows:

i. )Investigation: Up to 25 days 

ii.)Final Decision: Approximately 45 to 60 days if the accused confesses; 

It can be 5 to 7 months if contested.

Please note that Timelines are subject to judicial processes and case complexity and can be extended in complex crime cases potentially up to 90 days. 

According to Section 11 of the act, appeals against administrative decisions/fines by the Director General under Section 10(4) may be filed before the competent  High Court within 35 days of the decisions.

As per the Section 16 of the act, proceedings under the Immigration Act do not bar prosecution under other laws, such as those on forgery, organized crime, human trafficking, document fraud, or passport offences.

Nepal's Supreme Court has addressed key immigration principles through habeas corpus and other writs. Some of the precedents are as 

a. Punyawatee Pathak & Mana Basnet Karki v. His Majesty's Government, Ministry of Foreign Affairs: Writ No. 3355 of 2060

The Supreme Court held that executive authorities cannot impose additional conditions relating to passport issuance unless expressly authorized by law. The Court invalidated a policy requiring adult women to obtain guardian consent before receiving passports, holding that the executive had exceeded its statutory authority and violated constitutional guarantees of equality.

Ratio:
Although the dispute concerned passport issuance, the judgment establishes a broader     administrative law principle that immigration authorities may exercise only those     powers conferred by statute. Any restriction on entry, exit, or travel must therefore have     a clear legislative basis.

b. Abdi Fahad Yusuf v. Department of Immigration and Others: Decision No. 10503 (2020)

The petitioner remained in immigration detention after completing his criminal sentence because deportation could not immediately be arranged. The Supreme Court held that continued detention without adequate legal justification violated the constitutional right to personal liberty.

 The Court clarified that:

• Immigration detention cannot become indefinite; 

• Detention must be necessary and proportionate; 

• Administrative convenience alone cannot justify deprivation of liberty. 

    Ratio:
    The decision provides important guidance on the lawful exercise of detention powers under the Immigration Act, particularly where deportation cannot be immediately implemented.

The legal framework governing immigration in Nepal is ultimately subject to constitutional oversight through judicial review. The Supreme Court has consistently held that the powers exercised by immigration authorities must be lawful, procedurally fair, and consistent with the principles of natural justice. Accordingly, immigration decisions that exceed statutory authority, are arbitrary or discriminatory, or are made in violation of due process may be set aside through the Court's writ jurisdiction, reinforcing the rule of law and protecting individuals against unlawful administrative action.

Date of Publication: 23 July 2026

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