Kenya hosts a large asylum-seeking and refugee population, which at present is managed jointly by the country’s Department of Refugee Affairs (DRA) and the United Nations High Commissioner for Refugees (UNHCR) under the 2006 Refugees Act and the 2009 Refugees Regulations. Kenya recognizes two classes of refugees: prima facie refugees and statutory refugees. All asylum seekers go through an initial registration. At this point in the process, they are screened for their eligibility to seek asylum and to obtain accelerated processing. This is followed by an interview.
Recent terrorist attacks are said to have prompted Kenya to introduce changes to its refugee policy. One notable change was the introduction of an encampment policy requiring all asylum seekers and refugees in urban areas to relocate to designated camps. Although refugees have been allowed to engage in informal employment in the past, this appears to be getting increasingly difficult as the encampment policy constrains their ability to move about the country. In addition, work permits are rarely issued to refugees. Similarly, while refugees are technically free to apply for naturalization if they meet certain requirements, which on their face are not prohibitive, in practice Kenya does not naturalize refugees.
An asylum seeker is issued an asylum-seeker pass upon applying for refugee status, which is replaced by a refugee identification card after his application is granted. All asylum seekers and refugees are required to live in their designated refugee camps and need a movement pass in order to travel anywhere outside the camp.
I. General Background
Kenya hosts a large asylum-seeking and refugee population. This is due largely to the country’s location in a conflict-prone area. For example, neighboring countries like Somalia and South Sudan have experienced ongoing civil wars that have caused internal and external displacement of large segments of their population. According to the United Nations High Commissioner for Refugees (UNHCR), there were a total of 625,250 refugees and asylum seekers in the country in 2014. This figure increased to 650,610 in 2015. The majority of these people (close to 70%) were Somali citizens, while persons from South Sudan made up around 20% of the asylum-seeking and refugee population. The remainder included Ethiopians, Congolese, and around 20,000 stateless persons.
Refugees in Kenya primarily reside in the Dadaab refugee complex (which is in Garissa County and consists of five camps: Dagahaley, Hagadere, Ifo, Ifo II, and Kambios) and the Kakuma Refugee Camp located in Turkana County. In addition, as of April 2014, there were reportedly over 50,000 urban refugees in Nairobi.
Kenya is signatory to a number of international treaties applicable to individuals seeking asylum and protection. For instance, it acceded to the 1951 United Nations Convention Relating to the Status of Refugees on May 16, 1966, and its 1967 Protocol in 1981. Kenya is also a state party to the 1969 African Union (AU) (formerly known as the Organization of African Unity, OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, which it signed in September 1969 and ratified in June 1992. In addition, Kenya acceded to the 1984 Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment in February 1997. Of particular relevance to refugee issues is a provision in the Convention on nonrefoulement, which states that “[n]o State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
However, Kenya only recently put in place a national legal framework governing refugee matters and assumed partial responsibility for the refugee status determination (RSD) process. It did this when it took a step to implement its obligations under international law by enacting the Refugees Act in 2006, which took effect the next year, and its subsidiary legislation, the Refugees (Reception, Registration and Adjudication) Regulations, in 2009 (Refugees Regulations). Among other things, the Act established the Department of Refugee Affairs (DRA), whose responsibilities include receiving and processing applications for refugee status. Prior to that, refugee matters were governed under the now repealed Immigration Act and Alien Restriction Act, and RSDs and other matters relating to refugee management were delegated to the UNHCR. This practice continued long after 2006. It was only in 2014 that the DRA assumed some RSD functions, mainly endorsement of RSD determinations made by the UNHCR and issuance of notifications of recognition to refugees that meet the required criteria under the Refugees Act. The UNHCR is currently in the process of transferring all RSD functions to the DRA, and this transfer was scheduled to be finalized by the beginning of 2016.
This report describes key aspects of the Kenyan refugee legal framework (the Refugees Act of 2006 and the 2009 Refugees Regulations) and recent legal developments relevant to the management of the asylum-seeking and refugee population in Kenya.
II. Key Provisions of the Refugees Act
The Refugees Act recognizes two classes of refugees: statutory and prima facie refugees. The former category applies to a person who has “a well-founded fear of being persecuted for reasons of race, religion, sex, nationality, membership of a particular social group or political opinion.” The latter relates to a person who, “owing to external aggression, occupation, foreign domination or events seriously disturbing public order in any part or whole of his country of origin or nationality is compelled to leave his place of habitual residence.” Under the Act, asylum is “shelter and protection granted by the Government to persons qualifying for refugee status,” while an asylum seeker is “a person seeking refugee status.”
The Minister of Interior and Coordination of National Government is empowered to declare a class of persons prima facie refugees and to amend or revoke such declaration. The most recent example of a demonstration of this authority came in June 2014 when, acting on humanitarian grounds, Interior Minister Joseph Ole Lenku declared as prima facie refugees South Sudanese persons fleeing the civil war in their country. Kenya is said to have granted the same protection to persons from South and Central Somalia.
B. Disqualification, Cessation, Withdrawal, and Expulsion
Certain persons are disqualified from attaining refugee status, while persons who have been granted such status may lose it under some circumstances. A person is ineligible for refugee status if the person
- has committed a “crime against peace, a war crime, or a crime against humanity”;
- has committed a serious nonpolitical crime in or outside of Kenya;
- has committed acts “contrary to the purposes of the United Nations or the African Union”; or
- holds dual citizenship and could seek protection in one of the countries of his citizenship, and therefore does not have a well-founded fear of persecution.
A person who has been granted refugee status may lose that status through a voluntary or involuntary change in circumstances. For instance, if a person “voluntarily re-avails himself of the protection of his nationality,” voluntarily reacquires a lost citizenship or acquires a new citizenship, or voluntarily reestablishes himself in the country where he feared persecution, he would lose his refugee status. A person may also lose his refugee status as a result of changes to his circumstances independent of his own doing—for example, where the circumstances that formed the basis for the granting of status have “ceased to exist.”
The DRA may withdraw the refugee status of any person if it has “reasonable grounds for believing” that the person has ceased to be a refugee or should not have been recognized as such in the first place. This may occur if the person was ineligible for the status or the status was granted “erroneously as a result of misrepresentation or concealment of facts that were material to the refugee status determination.” In addition, the Act authorizes the DRA to withdraw the refugee status of any person if it has reasonable grounds to believe that the person is a danger to national security or to any community in the country.
The withdrawal of the refugee status of a person also results in the withdrawal of all derivative rights. When a person is granted refugee status, members of his family (including a spouse, dependent child, or sibling under the age of eighteen, or dependent parent, grandparent, grandchild, or ward living in the refugee’s household) are also accorded the same rights. If the person loses his refugee status, his family members also lose their status. However, any family member who loses his derivative status is entitled to petition for protection independently.
In addition to withdrawing a person’s refugee status, the DRA may also expel any refugee or a member of his family if it deems it necessary “on the grounds of national security or public order.”
C. Right of Appeal
In theory, asylum seekers and refugees have the right to appeal any decisions of the DRA. The Act establishes an Appeal Board chaired by an experienced legal professional, including as its members persons with knowledge of or experience in matters relating to immigration, refugee law, and foreign affairs, and requires that the Board operate independently in the exercise of its functions. Under the Act, asylum seekers and refugees are entitled to appeal any unfavorable decision of the DRA to the Board. However, Kenya has yet to constitute this body. As a result, the DRA and the UNHCR are said to “refrain from issuing rejections [to asylum claims] until an appeal process is established which could hear appeals against such negative outcomes.” This is said to cause delays in the RSD process in violation of the Act, which requires the DRA to make a determination within ninety days of an application.
D. Nonrefoulement and Voluntary Return
The Refugees Act prohibits refoulement, stating that “[n]o person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or to subjected [sic] any similar measure” if doing so would result in the persecution of the person or endanger his life, physical integrity, or liberty.
A program aimed at voluntarily repatriating Somali refugees has not had much success. In 2013, Kenya, Somalia, and the UNHCR signed an agreement to repatriate Somali refugees in the country. One of the provisions of the agreement requires that the repatriation be voluntary, stating that “[t]he parties hereby reaffirm that the repatriation provided for in this Agreement of Somali refugees who have sought refuge in the Republic of Kenya shall take place in conformity with international law pertaining to voluntary repatriation.” However, a 2014 survey found that only 2.9% of Somali refugees in the Dadaab complex had expressed interest in returning to Somalia within two years.
Recent developments indicate that the Kenyan government has sought (more than once) to forcibly repatriate Somali refugees and asylum seekers to Somalia in possible violation of the Act and its agreement with Somalia and the UNHCR (for more on this issue, see Part IV, below).
III. The Refugee Status Determination
The first step in the RSD process is registration. The Act and its subsidiary legislation require that anyone who wishes to remain in Kenya as a refugee must appear before the DRA and petition for recognition as such. The legality of the manner in which the person entered Kenya is immaterial to the eligibility to petition for refugee status. At this time, when the UNHCR is in the process of transferring its RSD function to the Kenya government, there are two parallel registration systems in place, one operated by the DRA and another run by the UNHCR. Once registered, the applicant is given an “asylum seeker pass” (issued by the DRA), an “asylum seeker certificate” (issued by the UNHCR), and an interview appointment.
Initial screening is done through a registration interview. The applicant is required to appear in person with his family members, if any. At the time of the registration interview, the applicant is asked to provide basic information (including biographical information) and submit all relevant supporting documents. The applicant and his family members, if any, are also required to submit to fingerprinting (which is checked against a national database) and photographing. The interview is used to screen applicants for the purpose of identifying vulnerable persons eligible for accelerated processing (see Part III(2), below) and to determine whether they meet general eligibility requirements for refugee protection.
The registration process is followed by the RSD process, which can be categorized into two classes: determinations involving prima facie refugees and regular process.
A. Prima Facie Refugees
The prima facie refugee process is relatively short. A person who is a member of a group entitled to this refugee status is accorded such status once he has been registered and his origin verified (no information was located with regard to how the verification process is handled) without the need to go through “a claim interview or further evidentiary or other requirements.” If there is any indication that an applicant is possibly excludable under the applicable laws or may not qualify for refugee status for other reasons, the person is referred to the regular RSD process.
As noted above, Kenya has accorded this status to claimants from South Sudan and South and Central Somalia.
B. Regular RSD Process
Following the completion of the registration process, an applicant is interviewed by an RSD officer on the date set at the time of registration. The waiting period for interviews appears to vary from six months to two years. The law requires the DRA to set up “a fair and transparent systems for the scheduling of refugee status determination interviews.” Kenya gives priority for “accelerated processing” to certain classes of applicants, including unaccompanied minors and survivors of gender-based violence, persons with medical issues, and persons awaiting deportation orders.
The burden of proving eligibility for refugee status lies with the applicant. The Refugees Regulations provide that the applicant has the duty to establish that he meets all the requirements for refugee status. An applicant may present documentary evidence and/or witnesses in support of his claim. Whenever documentary evidence is not available, “the credible testimony of an asylum seeker in consideration of conditions in the country of origin may suffice to establish eligibility for refugee status.” During the RSD interview, the applicant may “present his refugee claims in person . . . or be represented at his own cost by a legal representative.”
The interview phase is followed by an assessment, decision-making, and review process. Following the interview, UNHCR and DRA caseworkers “evaluate evidence gathered in the interview, undertake any further research, conduct legal analysis and take other necessary steps to make an assessment of the applicant’s claim.” They then formulate “a recommendation for a decision to grant or deny the claim.” This is evaluated by a reviewer who verifies the work done by the interviewer and makes recommendations, including recalling of the applicant for an additional interview. Once this process is completed to the satisfaction of the reviewer, the matter is then referred to the DRA, where the final decision is made and notification is sent to the applicant.
IV. Recent Legal Developments
Recent terrorist attacks seem to have prompted Kenya to make drastic changes to its policy on asylum seekers and refugees. One of the key changes came in the form of an announcement of an encampment policy. Until recently, Kenya allowed refugees and asylum seekers to live in urban areas, a policy that received official endorsement when, in 2011, the government began registering refugees in urban centers (Nairobi, Malindi, Mombasa, and Nakuru) and issuing them refugee certificates. For instance, by 2012, there were an estimated 100,000 refugees living in Nairobi, over three times the officially registered refugees in the city in 2006. Following a series of terrorist attacks in urban locations, the DRA announced an encampment policy at the end of 2012, requiring all refugees and asylum seekers in cities to relocate to refugee camps with the plan to repatriate them to their home countries. This triggered a legal challenge before the Kenya High Court at Nairobi. In a ruling issued in July 2013, the Court held that the government announcement was, among other things, a violation of the constitutional right of movement and the principle of nonrefoulement enshrined in the Refugees Act.
In March 2014, the government again issued a directive ordering urban refugees to go to and remain in designated camps. Citing security and logistical challenges resulting from the presence of refugees and asylum seekers in urban areas, the directive provided that
- all refugees residing outside of the designated refugee camps must return to the camps immediately;
- all Kenyans must report refugees and illegal immigrants they encounter outside of camps; and
- an additional five hundred law enforcement officers were going to be deployed mainly to Nairobi and Mombasa “to enhance security and surveillance.”
By May 2014, around 350 individuals, at least six of whom were registered refugees, were said to have been deported back to Somalia. This time, the government measure survived judicial scrutiny; a petition before the High Court of Kenya at Nairobi challenging the legality of the directive was rejected.
In December 2014, Kenya took the matter further and made key amendments to the Refugees Act of 2006. A key provision in the 2014 amendment sought to make permanent the encampment policy, stating that “[e]very person who has applied for recognition of his status as a refugee and every member of his family shall remain in the designated refugee camp until the processing of their status is concluded.” Another provision states that “[e]very refugee and asylum seeker shall . . . not leave the designated refugee camp without the permission of the Refugee Camp Officer.”
However, the most notable provision in the 2014 amendment was one that sought to dramatically reduce the number of refugees and asylum seekers in the country, potentially through forced repatriation. It states as follows:
The number of refugees and asylum seekers permitted to stay in Kenya shall not exceed one hundred and fifty thousand persons. (2) The National Assembly may vary the number of refugees or asylum seekers permitted to be in Kenya. (3) Where the National Assembly varies the number of refugees or asylum seekers in Kenya, such a variation shall be applicable for a period not exceeding six months only. (4) The National Assembly may review the period of variation for a further six months.
The strict implementation of this law today would result in the refoulment of 400,000 refugees and asylum seekers, most of whom are Somali citizens. Following the enactment of this amendment, multiple petitions challenging the legality of the legislation were filed. On February 25, 2015, the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi found that this particular provision was “unconstitutional, and therefore null and void.” The Court noted that placing a cap on the number of refugees and asylum seekers that may be present in Kenya would invariably result in the expulsion of hundreds of thousands of refugees and “violate the principle of non refoulement, which is a part of the law of Kenya and is underpinned by the Constitution.”
Following the April 2, 2015, deadly attacks at Garissa University by the Somalia-based terrorist group Al-Shabaab, which claimed close to 150 lives, Kenya announced that it would close the Dadaab refugee complex immediately and repatriate its residents, all of whom are Somali, back to Somalia. Kenya reportedly retracted its plans following pressure from the international community, including the United States of America.
A sustainable integration of refugees into a host country is said to have three interconnected aspects: legal (the according of rights to refugees, including the right of employment, property ownership, movement, permanent residency, and citizenship); economic (refugees becoming self-sufficient); and social (the ability of refugees to live among the citizens of the host country).
In theory, refugees in Kenya are free to engage in any form of self-employment without the need to obtain formal authorization and they may take paid employment after obtaining a work permit. The Act provides that “every refugee and member of his family in Kenya shall, in respect of wage-earning employment, be subject to the same restrictions as are imposed on persons who are not citizens of Kenya.” Refugees and their spouses may apply for and obtain a class M work permit. A holder of a class M work permit “may engage in any occupation, trade, business or profession.” Although obtaining a two-year work permit previously cost refugees US$700, this is no longer the case as Kenya has removed this fee and made permits available free of charge.
While refugees may theoretically work, the practice is reportedly much different. The Refugee Consortium of Kenya stated in 2012 that the government does not issue work permits to asylum seekers or refugees except in “a few isolated cases.” As a result, refugees and asylum seekers are forced to seek employment in the informal sector. However, this is increasingly being made difficult by the country’s encampment policy, which restricts the ability of refugees and asylum seekers to move about the country freely.
A path to naturalization is apparently not available to refugees. The 2010 Kenyan Constitution provides that “[a] person who has been lawfully resident in Kenya for a continuous period of at least seven years” and who meets other conditions prescribed in the relevant legislation may be naturalized. Kenyan law on citizenship provides additional conditions, including the ability to speak Kiswahili or a local language and the capacity to make a substantive contribution to Kenya’s development. However, in practice, Kenya does not appear to grant citizenship to refugees.
VI. Role of Local Governments
While the 2010 Kenya Constitution ended the unitary system of government and decentralized power by establishing county governments with executive and legislative powers, it put the authority to deal with matters relating to refugee management exclusively in the hands of the national government. Although, as noted above, counties host refugees, county governments have neither the authority nor the budget to directly participate in any aspect of the refugee management process. However, there are a number of ways in which county governments have indirect involvement in refugee management; chief among them is the question of allocation of community land for use as a refugee camp.
VII. Government Assistance
No information was located regarding any government assistance programs available for, or that cater to, asylum seekers and refugees.
VIII. Monitoring and Movement of Refugees
As noted above, refugees and asylum seekers are required to remain in designated refugee camps. The Act requires that all asylum seekers and refugees be issued identity cards or passes. An asylum seeker is issued an asylum-seeker pass after applying for refugee status. The asylum-seeker pass must “specify the time and date” on which the asylum seeker must present himself in the designated refugee camp and includes information that failure to do so “may result in the withdrawal of the pass.” After the person is granted refugee status, he is issued a refugee identification card. Any refugee wishing to travel outside of the camp where he resides must first obtain a movement pass.
Prepared by Hanibal Goitom
Foreign Law Specialist
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 Id. ¶¶ 54 & 68.
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 Id. § 2.
 Id. § 3.
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 Garlick et al., supra note 14, ¶ 258.
 Refugees Act § 4.
 Id. § 5.
 Id. § 20.
 Refugees Regulations § 37.
 Refugees Act § 19.
 Id. § 15.
 Refugees Act §§ 2 & 20; Refugees Regulations § 41.
 Refugees Act § 20; Refugees Regulations § 41.
 Refugees Act § 21; Refugees Regulations § 47.
 Refugees Act § 9.
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 Id. ¶ 28.
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 Refugees Act § 11.
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 Id. § 8.
 Id. § 9.
 Id. §§ 5 & 7; Refugee Consortium of Kenya, supra note 13, at 27.
 Garlick et al., supra note 14, ¶ 80.
 Id. ¶ 83.
 Refugees Regulations § 18.
 Garlick et al., supra note 14, ¶ 101; Refugees Regulations § 30.
 Refugees Regulations § 22.
 Id. §§ 25 & 26.
 Id. § 22.
 Id. § 20.
 Garlick et al., supra note 14, ¶ 86.
 Id.¶¶ 87, 89 & 90.
 Id. ¶¶ 110–111; Refugee Regulations § 30.
 Refugee Consortium of Kenya, supra note 13, at 77.
 Id.; Pavanello et al., supra note 11, at 11.
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 Id. § 47.
 Id. § 48.
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 Id. at 62.
 Id. at 58.
 Refugees Act § 14
 Refugees Regulations § 4.
 Id. § 13.
 Id. § 33.
 Refugees Act § 17; Refugees Regulations § 35.
Last Updated: 12/30/2020