Responses to Information Requests

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Rights and obligations conferred on an individual who has been recognized as a refugee
1.1 Rights and obligations conferred under the legislation

Kenya passed legislation with respect to refugees, the Refugees Act, in 2006 (Kenya 2006). In a report released in 2012 with the support of the Danish Refugee Council (DRC), the Refugee Consortium of Kenya (RCK), an NGO that protects and promotes the rights of refugees in Kenya and East Africa (RCK n.d.), explains that before this law came into force in May 2007, the country had no legislation specific to refugees (RCK June 2012, 20-21). According to RCK, from 1992 until the Refugees Act was implemented, on “the invitation of the government,” the United Nations High Commissioner for Refugees (UNHCR) had overall responsibility for protecting refugees in Kenya, including determining refugee status (ibid.). The same source reports that, before the Refugees Act was implemented, refugee-related issues were administered under immigration laws, notably the Immigration Act and the Aliens Restriction Act (ibid.). The Immigration Act and the Aliens Restriction Act were repealed and replaced by the Citizenship and Immigration Act in 2011 (Kenya n.d.a).

According to RCK, the Refugees Act makes general provisions for recognized refugees and their families to be entitled to the rights and subject to the obligations contained in the international conventions to which Kenya is party, notably the 1951 United Nations (UN) Convention Relating to the Status of Refugees (RCK June 2012, 23). The Refugees Act also specifies that refugees and asylum seekers are entitled to identity documents (Kenya 2006, Sec. 14).

A report by Amnesty International (AI) states, “The Kenyan government is obliged under the Refugee Convention to guarantee refugees the right to move freely within their country,” but the Refugees Act of 2006 “gives the minister power to designate camps and transit centres as places of residence, and stipulates that refugees must apply for a movement pass to travel outside the camps” (AI May 2014, 9). According to AI, this requirement violates the provisions of the Refugee Convention and has been used by state security forces to restrict refugees’ movements (ibid.). RCK notes that refugees in the camps do not have the right to change their residence or travel without permission, which, according to RCK, has an impact on the enjoyment of other rights, such as employment, education and justice (RCK June 2012, 29).

Section 16 of the Refugees Act specifically sets out the following rights and responsibilities for those with refugee status:

1. Subject to this Act, every recognized refugee and every member of his family in Kenya -
1. shall be entitled to the rights and be subject to the obligations contained in the international conventions to which Kenya is party;
2. shall be subject to all laws in force in Kenya.
2. The Minister may, by notice in the Gazette, in consultation with the host community, designate places and areas in Kenya to be -
1. transit centres for the purposes of temporarily accommodating persons who have applied for recognition as refugees or members of the refugees’ families while their applications for refugee status are being processed; or
2. refugee camps.
3. The designated areas provided for in subsection (2) shall be maintained and managed in an environmentally sound manner.
4. Subject to this Act, 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. (Kenya 2006)

Section 18 of the Refugees Act also makes the following provisions with regard to the “[n]on-return of refugees, their families or other persons”:

No person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or to subjected any similar measure if, as a result of such refusal, expulsion, return or other measure, such person is compelled to return to or remain in a country where -

1. the person may be subject to persecution on account of race, religion, nationality, membership of a particular social group or political opinion; or
2. the person’s life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing public order in part or the whole of that country. (ibid.)

The RCK report notes that, under the 1951 UN Convention, refugees have the general duty to respect the laws of the country in which they find themselves (RCK June 2012, 25). The regulations under the Refugees Act (effective in 2009) also stipulate the following duties:

• to provide truthful information upon registration as a refugee (ibid., Reg. 10(c)(ii));
• to attend an asylum status determination interview (ibid., Reg. 6(1));
• to comply with fingerprinting and photographing requirements (ibid., Reg. 9(1)(a));
• to produce any identification document in his possession (ibid., Reg. 9(1)(b)); and
• to surrender any permit issued prior to the application for asylum (ibid., Reg. 8(1)(c)).

Specifically, Section 25 of the Refugees Act stipulates:

Any person who -

1. is unlawfully in Kenya in contravention of this Act;
2. makes any false declaration or statement to an appointed officer;
3. knowingly misleads any appointed officer seeking information material to the exercise of any of his powers under this Act;
4. having left or been removed from Kenya in consequence of an order made under section 21 of this Act, is found in Kenya while that order is still in force;
5. not being a refugee and not having a valid refugee identification document, fails to comply with an order of the Minister to leave Kenya; or
6. resides without authority outside the designated areas specified under section 16(2),
7. commits an offence and shall on conviction be liable to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment. (ibid., Sec. 25)

1.2 Cessation of refugee status

Section 19 of the Refugees Act of 2006 stipulates:

Commissioner [person in charge of refugee affairs] may withdraw refugee status

The Commissioner may withdraw the refugee status of any person where there are reasonable grounds for regarding that person as a danger to national security or to any community of that country. (ibid., Sec. 19)

Furthermore, Section 5 of the Refugees Act contains the following provisions that lead to the cessation of refugee status:

A person shall cease to be a refugee for the purposes of this Act if that person -

1. voluntarily re-avails himself of the protection of the country of his nationality;
2. having lost his nationality, voluntarily re-acquires it;
3. acquires the nationality of another country and enjoys the protection of the country of his new nationality;
4. voluntarily re-establishes himself in the country which he left or outside which he remained owing to fear of persecution;
5. can no longer, because circumstances in connection with which he was recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; or
6. has committed a serious non-political crime outside Kenya prior to his admission to Kenya as a refugee;
7. having lost his nationality, continues to refuse to return to the country of his former habitual residence:

Provided that the provisions of this paragraph shall not apply to a person who has compelling reasons arising out of previous persecution for refusing to avail himself or herself the protection of the country of nationality or to return as the case may be. (ibid., Sec. 5)

1.3 Rights and obligations in practice

According to the RCK report, as of June 2012, despite the legal obligations in this regard, not all refugees had access to identity documents because of distribution problems (RCK June 2012, 26).

According to AI, it has become increasingly difficult for asylum seekers to register as refugees, and specifically since December 2012 it has become “almost impossible” (AI May 2014, 12). Sources state that in December 2012, after some violent attacks, the government issued a directive to refugees and asylum seekers in urban areas to relocate to refugee camps (International Crisis Group 25 Sept. 2014, 12; UN June 2014, 5). Sources report that the issuance of this directive resulted in the arrest and detention of a large number of refugees and asylum seekers, as well as reports of abuse, extortion (ibid.; AI 11 July 2014) and harassment (ibid.).

According to sources, in December 2012, in urban centres, Kenya suspended its registration of asylum seekers (Human Rights Watch 23 May 2014; AI May 2014, 13; UN June 2014, 1) and refugees (ibid.; AI May 2014, 12-13). A report by UNHCR states that this suspension also included the issuance of documentation to refugees and asylum seekers, resulting in thousands of them being unregistered or undocumented (UN June 2014, 1). AI also indicates that this suspension has prevented many who qualify for refugee status from obtaining documentation (AI May 2014, 13). According to Kituo Cha Sheria, a Kenyan legal aid centre whose work includes issues related to forced migration (Kituo n.d.), “a large number” of refugees with expired “Alien Cards” had reported having trouble renewing the cards because those operations had ceased (Kituo 2014, 38). Sources report that the registration of refugees and asylum seekers resumed in urban centres in March 2014 (UN June 2014, 5; AI May 2014, 13), but only for two weeks (ibid.). AI states, “Thousands of people are in an impossible situation, facing arrest and expulsion because they are not registered, while it is extremely difficult to register” (ibid.). According to sources, an amendment to the security law was passed in December 2014 that stipulates that refugees and asylum seekers in urban centres must remain in the camps until the processing of their status is concluded (IRIN 8 Jan. 2015; Freedom House 2015).

Sources indicate that at least three registered refugees were among the hundreds of people deported from Kenya in 2014 (Human Rights Watch Jan. 2015, 3; AI May 2014, 11). According to AI, it was reported that some of the individuals expelled had “Alien Cards” or had refugee or alien status, but did not have their documents, or their documents were confiscated or destroyed after their arrest (ibid.).

Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of the Response.

2. Requirements and process for obtaining permanent residence

In the summary of a legal case on which he ruled, a judge of the High Court at Mombasa explains that permanent residence status in Kenya is a new category of status that was introduced by the Kenya Citizenship and Immigration Act, 2011 (Kenya 2 Sept. 2013, para. 1, 29). The Citizenship and Immigration Act stipulates that persons eligible for permanent residence status include “persons who have held work permits for at least seven years and have been continuously resident in Kenya for the three years immediately preceding the making of the application” (Kenya 2011, Sec. 37). The form set out by the Kenya Citizenship and Immigration Regulations, 2012, which govern the Kenya Citizenship and Immigration Act, 2011, specifically requests a list of all the addresses where the person making the application has lived in the preceding seven years (Kenya 2012, Form One, First Schedule). The Regulations specify that a permanent residence certificate issued to a person who is not present in Kenya at the time of the application will cease to be valid if that person does not enter Kenya within one year after the certificate’s date of issue (Kenya 2012, Reg. 19).

Information on the implementation in practice of these procedures could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. “Alien Certificates”

In correspondence sent to the Research Directorate, the person responsible for Kenya at the DRC, a humanitarian non-profit NGO that works directly with refugees, displaced people and their host communities (DRC n.d.), stated, after consulting a representative of Kenya’s Department of Refugee Affairs, that the terms “Alien Certificate” and “Alien Card” were interchangeable (DRC 11 Feb. 2015). According to the representative, these documents have not been issued to refugees since the Department of Refugee Affairs was established in 2007 (ibid.). The representative added that the Government of Kenya is gradually phasing out the issuance of Alien Certificates in favour of Refugee Identity Cards, also known as “Refugee Certificates” (ibid.).

The representative explained that prior to 2007, it was the Immigration Department of the Ministry of Immigration and Registration of Persons that used to issue Alien Certificates to all foreigners in Kenya (ibid.). The representative added that the Alien Certificates issued to refugees were blue in colour to differentiate them from those issued to other foreigners in the country and that some of them were marked “issued in accordance with the Refugees Act, 2006”  (DRC 11 Feb. 2015).

The Refugees Act of 2006 established the issuance of a Refugee Identity Card for refugees who are 18 years of age or older (Kenya 2006, Reg. 33). However, the RCK report notes that the procedure for issuing cards was not developed until 2009, with the entry into force of the Refugees (Reception and Adjudication) Regulations (RCK June 2012, 48-49). The same source explains that this led to some refugees being issued a blue Alien Certificate specifically issued to refugees, while others were issued Refugee Identity Cards (ibid., 49). In its 2011 annual report, Kituo also states that the Refugee Identity Card has been issued to refugees since 2009, instead of the Alien Certificate (Kituo 2012, 24).

According to the representative, holders of an Alien Certificate/Card or Refugee Identity Certificate/Card are entitled to the rights set out in the Refugees Act (DRC 11 Feb. 2015).

3.1 Procedures for obtaining an “Alien Certificate”

According to the website of the High Commission of Kenya in South Africa, individuals who stay in Kenya for more than 90 days must have an Alien Certificate, also called an “Alien Card” (Kenya n.d.b). According to the Government of Kenya’s Business Licensing Portal, the Alien Certificate is needed to obtain employment in Kenya, other than with the government, and requires that a person have valid immigration status and an entry permit (Kenya n.d.c). Sites connected with the Government of Kenya indicate that the Alien Certificate is valid for two years (Kenya n.d.b) and may be renewed (Kenya n.d.e). The High Commission of Kenya in South Africa states that the Alien Certificate is issued in person in Kenya (Kenya n.d.b).

The issuance of the Alien Certificate is governed by the subsidiary legislation of the Aliens Restriction Act (Kenya 1985, Sec. 3(2)(4)). The form used to apply for an Alien Certificate includes questions about the application for refugee status (Kenya n.d.d).

The subsidiary legislation of the Aliens Restriction Act states that the Alien Certificate remains the property of the Government of Kenya and must be surrendered to the relevant authorities when the holder ceases to reside in Kenya or leaves the country (Kenya 1985, Sec. 3(2)(6)(4)).

However, the Aliens Restriction Act was repealed by the Kenya Citizenship and Immigration Act, 2011 (Kenya 2011, Sec. 65). Information explaining the legal basis on which the Alien Certificate continues to be requested could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3.2 Distribution of Alien Certificates to refugees

According to RCK, before the enactment of the Refugees Act of 2006, the identity documents issued by the Government of Kenya were limited to national identity cards, passports for citizens and the Alien Certificate for all foreigners who were in the country legally (RCK June 2012, 48). RCK reports that the Government of Kenya and UNHCR registered a large portion of all refugees in Kenya from 2004 to 2005, before the Refugees Act came into force, and all refugees above the age of 18 received identity documents valid for 10 years thereafter (ibid.). For its part, the International Crisis Group indicates that permits valid for five years were reportedly handed out during the implementation period of the Refugees Act, but it does not provide the name of those permits; the permits apparently granted refugees most of the privileges enjoyed by citizens, except the right to vote (International Crisis Group 25 Sept. 2014, 12). AI quotes a representative of the Somalian refugee community in Kenya as similarly stating, “In 2006, we were welcomed in Kenya and given alien cards. We were told by immigration that the only thing we could not do in Kenya was to vote or be voted for” (AI 11 July 2014).

Kituo, however, states that as of 2012, most Kenyan government organizations were unfamiliar with the documentation issued to refugees by the Department of Refugee Affairs, noting in particular that the existence of the Refugee Identity Card was largely unknown (Kituo 2012, 24). RCK reports that issuance of the Refugee Identity Card did not keep pace with refugee registration because of the lack of government resources (RCK June 2012, 50). According to the same source, as of June 2012, only individuals who had been registered in 2004-2005 had received refugee identity cards; the others had received only waiting slips (ibid.).

For its part, a report on living conditions in the refugee camps in the region of the city of Dadaab, prepared by Intermedia Development Consultants (iDC), a consulting agency in the field of international cooperation (iDC n.d.) working for the DRC, states that the enactment of the Refugees Act of 2006 resulted in refugees gaining access to either a refugee certificate with a two-year validity issued by UNHCR, or an Alien Refugee Certificate issued by Kenya’s Department of Refugee Affairs, valid for five years (iDC August 2013, 9). The same source indicates that, to acquire the right to work, one must hold a Class M Work Permit and an Alien Refugee Certificate (ibid.). The report notes, however, that a Class M Permit is “extremely difficult to come by, as the Government’s priority is to create employment for its citizens first” (ibid.). The report adds that the Alien Refugee Certificate gives refugees greater mobility by providing them with “some measure of protection from harassment by security forces,” while improving access to education for refugee children and youth (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Notes

[1] IRIN is a non-profit news and information service, notably with regard to humanitarian emergencies and disasters. Formerly operating under the auspices of the UN, IRIN has been operating independently since 1 January 2015 (IRIN 1 Jan. 2015).

References

Amnesty International (AI). 11 July 2014. “Kenya: Refugees Appeal Against Forced Relocation to Camps.” <http://www.amnesty.org/en/news/kenya-refugees-appeal-against-forced-relocation-camps-2014-07-11> [Accessed 5 Feb. 2015]

_____. May 2014. Somalis are Scapegoats in Kenya’s Counter-Terror Crackdown. (AFR 52/003/2014). <http://www.amnesty.org/ar/library/asset/AFR52/003/2014/en/e9a7c01f-1138-4150-9cd7-4baebb3285c9/afr520032014en.pdf> [Accessed 5 Feb. 2015]

Danish Refugee Council (DRC). Correspondence sent to the Research Directorate by the person responsible for Kenya.

_____. N.d. “Facts about DRC.” <http://drc.dk/about-drc/facts-about-drc/> [Accessed 6 Feb. 2015]

Freedom House. 2015. “Kenya.” Freedom in the World 2015. <https://www.freedomhouse.org/report/freedom-world/2015/kenya#.VNPUAZ3F__M> [Accessed 5 Feb. 2015]

Human Rights Watch. January 2015. “Kenya.” World Report 2015. <http://www.hrw.org/sites/default/files/related_material/kenya_4.pdf> [Accessed 5 Feb. 2015]

_____. 23 May 2014. “Kenya: Mass Deportation of Somalis.” <www.hrw.org/news/2014/05/23/kenya-mass-deportation-somalis> [Accessed 6 Feb. 2015]

Intermedia Development Consultants (iDC). August 2013. Christine Kamau and John Fox. The Dadaab Dilemma: A Study on Livelihood Activities and Opportunities for Dadaab Refugees. <http://drc.dk/fileadmin/uploads/pdf/IA_PDF/Horn_of_Africa_and_Yemen/Dadaab_Livelihood_Study_-Final_Report.pdf> [Accessed 6 Feb. 2015]

_____. N.d. “About iDC.” <http://idc.co.ke/index.php?option=com_content&view=article&id=61&Itemid=66> [Accessed 20 Feb. 2015]

International Crisis Group. 25 September 2014. Kenya: Al-Shabaab - Closer to Home. Africa Briefing N°102. <http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/kenya/b102-kenya-al-shabaab-closer-to-home.pdf> [Accessed 5 Feb. 2015]

IRIN. 8 January 2015. “La loi kenyane sur la sécurité menace les réfugiés.” <http://www.irinnews.org/printreport.aspx?reportid=100992> [Accessed 5 Feb. 2015]

_____. 1 January 2015. Ben Parker. “A New Chapter.” <https://medium.com/@BenParker140/a-new-chapter-5ecd753546e7> [Accessed 5 Feb. 2015]

Kenya. 2 September 2013. High Court at Mombasa. Constitutional Petition No. 38 of 2012. <http://kenyalaw.org/caselaw/cases/view/90521/2012> [Accessed 20 Feb. 2015]

_____. 2012. Kenya Citizenship And Immigration Regulations, 2012. <http://www.kenyaembassyireland.net/wp-content/uploads/Kenya-Citizenship-Regulations-2012.pdf> [Accessed 6 Feb. 2015]

_____.2011. The Kenya Citizenship and Immigration Act, 2011. <http://admin.theiguides.org/Media/Documents/ImmigrationCitizenshipAct2011.pdf> [Accessed 5 Feb. 2015]

_____. 2009. Refugees (Reception, Registration and Adjudication) Regulations, 2009. <http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/RefugeeAct_No13of2006.pdf> [Accessed 5 Feb. 2015]

_____. 2006 [revised 2012]. Refugees Act. <http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/RefugeeAct_No13of2006.pdf> [Accessed 5 Feb. 2015]

_____. 1985 [revised 2010]. The Aliens Restriction Act. <http://kenyalaw.org/kl/fileadmin/pdfdownloads/RepealedStatutes/AliensRestrictionActCap173.pdf> [Accessed 5 Feb. 2015]

_____. N.d.a. The Kenya High Commission, Ottawa. “Notice on Kenyan Citizenship.” <http://kenyahighcommission.ca/dual-citizenship/> [Accessed 19 Feb. 2015]

_____. N.d.b. The High Commission of the Republic of Kenya to South Africa. “Frequently Asked Questions.” <http://www.kenya.org.za/FAQs%20Other%20PP%20Holders.html> [Accessed 6 Feb. 2015]

_____. N.d.c. Department of Immigration. “Entry Permit - Aliens Card.” <http://www.businesslicense.or.ke/index.php/license/print/id/74> [Accessed 6 Feb. 2015]

_____. N.d.d. Department of Immigration. “Form A1: Application Form for Registration as an Alien.” <http://www.immigration.go.ke/downloads/Form-A1-Application%20for%20Registration%20as%20Alien.pdf> [Accessed 6 Feb. 2015]

_____. N.d.e. Department of Immigration. “Form A2: Form for Renewal of an Aliens Registration Certificate.” <http://www.immigration.go.ke/downloads/Form-A2-Application%20for%20Alien%20Certificate%20Renewal.pdf> [Accessed 9 Feb. 2015]

Kituo Cha Sheria. 2014. Annual Report January - December 2013. <http://kituochasheria.or.ke/wp-content/uploads/2015/01/Annual-Report-2013-final.pdf> [Accessed 9 Feb. 2015]

_____. 2012. Annual Report January - December 2011. <http://kituochasheria.or.ke/wp-content/uploads/2014/03/Kituo-cha-Sheria-Annual-Report-2011.pdf> [Accessed 9 Feb. 2015]

_____. N.d. “History and Core Values.” <http://kituochasheria.or.ke/history-and-core-values> [Accessed 9 Feb. 2015]

Refugee Consortium of Kenya (RCK). June 2012. Asylum Under Threat: Assessing the Protection of Somali Refugees in Dadaab Refugee Camps and Along the Migration Corridor. <http://www.rckkenya.org/index.php/component/k2/item/download/ 12_02b0b76d215026a5b68a8420d95d10f0> [Accessed 6 Feb. 2015]

_____. N.d. “About Us.” <http://www.rckkenya.org/index.php/about-rck/about-us> [Accessed 6 Feb. 2015]

United Nations (UN). June 2014. United Nations High Commissioner for Refugees (UNHCR). Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report -Universal Periodic Review: Kenya. <http://www.upr-info.org/sites/default/files/document/kenya/session_21_-_january_2015/unhcr_-_united_nations_high_commissioner_for_refugees.pdf> [Accessed 5 Feb. 2015]

Additional Sources Consulted

Oral sources: The following persons and organizations were unable to provide information for this Response: Kenya – Department of Refugee Affairs; Kituo Cha Sheria; Refugee Consortium of Kenya.

Internet sites, including: ecoi.net; Factiva; Father’s Hand; Fédération internationale des ligues des droits de l’homme; International Justice Resource Center; Kenya Human Rights Commission, the Presidency; Nairobi Urban Refugee Protection Network; United Kingdom – Home Office; United Nations – Refworld, Reliefweb; United States – Department of State.