Seeking Asylum In Kenya

Introduction

The Refugees Act, 2021 laws of Kenya (hereinafter the “Refugee Act”) defines asylum as the protection granted to a person in Kenya who is outside his or her country of nationality or habitual residence and who is fleeing persecution or serious harm or for other reasons. An asylum seeker is a person seeking protection in accordance with the provisions of the Refugee Act but whose claim to refugee status has not been determined. In contrast, a refugee is a person who has been determined as such under the provisions of the 1951 Convention relating to Refugee Status. Under the Refugee Act section 3(2) such persons are known as prima facie refugees.

Application for asylum

An asylum seeker makes an application to the Commissioner for Refugee Affairs (“the Commissioner”) either directly or through an authorized officer. The Commissioner then invites the applicant to appear and provide oral or documentary evidence to support the application for asylum. However, before the application is determined the Commissioner shall grant the asylum seeker a temporary pass valid for ninety (90) days, which pass, shall act as evidence that the person has applied for asylum in Kenya. Where the pass expires before the application for asylum is determined or upon appeals, the asylum seeker shall renew the application until all the rights of appeal have been exhausted. After an interview with the Commissioner or the delegated staff, the application file is forwarded to the Status Eligibility Panel who will conduct a further review on the application and make recommendations to the Commissioner whether to grant or refuse asylum depending on the case. The Commissioner determines the application for asylum within ninety (90) days from the date of receiving the application and for a reasonable cause, the timeline can be extended. The Commissioner shall give reasons where the application for asylum is refused.

Appealing the Commissioner’s decisions

Where an asylum seeker is aggrieved by the refusal of the Commissioner to grant asylum, the applicant may within thirty (30) days of receiving the decision lodge an appeal in person or through a representative to the Appeals Committee under the Refugee Act. The asylum seeker can further appeal to the High Court against the determination of the Appeals Committee within thirty (30) days of notification of the decision of the Appeals Committee. Where the High Court upholds the decision of the Commissioner refusing to grant asylum, the Commissioner shall within sixty (60) days of the ruling of the High Court notify the Director of Immigration of the decision. The Director shall then deal with the application in accordance with the immigration law.

Rights and obligations of Asylum Seekers

An asylum seeker has the right to be granted a temporary pass pending the determination of his application upon which he or she shall be issued with appropriate identification and civil registration documents for purposes of accessing the rights and services under the Refugee Act and other laws of Kenya. Refugees and asylum seekers are protected from being refused entry into Kenya, being expelled, extradited or returned to any other country where they may be persecuted on the basis of their race, religion, nationality or membership of a particular social group or political opinion. This is under an international law principle known as the Principle of Non-Refoulement. The obligations of an asylum seeker in Kenya are similar to the obligations of refugees, which is to abide by all laws of Kenya including lawful orders given by the mandated institutions under the Refugees Act.

Protection of vulnerable groups

The Refugees Act mandates the Commissioner to ensure that special measures are taken to ensure the dignity and safety of women and children seeking asylum during their stay in any reception area, transit point or a settlement area pending the determination of their application for asylum. The Commissioner shall also ensure that persons with disabilities, the old and traumatized asylum seekers are granted special protection at all times during their admission and stay in Kenya.

Integration of asylum seekers and refugees into communities

The Commissioner shall ensure that there is shared use of public institutions, facilities and spaces with the host communities. In addition, the Commissioner shall sensitize the host communities about the presence of refugees and asylum seekers and the need to co-exist well with each other. The Commissioner shall liaise with the national and county governments to ensure that refugee matters are considered in the initiation and formulation of sustainable development and environmental plans. Furthermore, the Commissioner shall co-operate with the United Nations High Commission for Refugees (UNHCR) and other Refugees Organizations to grant special attention to vulnerable groups of people.

Voluntary repatriation

An asylum seeker shall have the right to return voluntarily at any time to their country or nationality or of habitual residence and any act or omission to prevent voluntary repatriation is prohibited. An asylum seeker who leaves Kenya voluntarily is required to surrender all identification documents and permits acquired upon application for asylum or refugee status.Written by: Miriam MUGO and Bonventure LETARE