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INTRODUCTION

A refugee is any person who owing to a well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group or political
opinion is outside his country of nationality and is unwilling to avail himself of the
protection of that country of his former habitual residence is unable or, owing to such
fear, is unwilling to return to it1.
The OAU refugee convention has expanded the definition of refugee to include
persons fleeing armed conflict2.
As such a refugee status is only not applicable to persons forced to move because of
natural calamities or economic reasons3.
Kenya being a major refugee receiving state, as a result of being bordered by
Somali, a failed state Sudan and Uganda, both of which are facing internal instabilities
and armed conflicts, the Refugee Act was enacted which sets out rights, duties and
procedures of acquiring refugee status in Kenya.
As pertaining to entry, granting as well as expulsion of refugees the procedure for
acquiring recognition as a refugee in Kenya has been set out thus4:-
a) Person seeking such status must appear in person before the commissioner
immediately upon his entry or in any case within 30 days after his entry into
Kenya.
b) In the case of one lawfully in Kenya but is now unable to return to his country of
origin for any reasons specified in the Act, he should present himself before the
expiry of his lawful stay in the country.
c) An application for recognition as a refugee is made to an appointed officer who
refers the applications to the commissioner.
d) The commissioner considers all applications so referred within ninety days from
the date the application is so referred within which he makes inquiries and
investigations necessary into the application and calls upon applicant to make an
oral presentation.
e) After such consideration the commissioner either:
1. grants refugee status to the applicant
2. rejects the application where:
-on such rejection he must within fourteen days notify the applicant in
writing of the decision and the reasons wherefore.
f) If the application is approved then the refugee and his family or asylum seeker
are issued with a refugee identity card or passes and are permitted to remain in
Kenya.
g) On rejection of the application by the commissioner the applicant may lodge an
appeal within thirty days in the Refugee Appeal Board which is empowered to
either confirm or set aside the decision of the commissioner.
h) If appellant is aggrieved by the decision of the Appeal Board he may within
twenty one days appeal to the High Court.
1 Geneva Convention on Status of Refugees 189 United Nations Treaty Series 137 (entered into force on 22 April, 1954)
2 OAU Refugee Convention of 1969, Article 1, “Owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either the
whole of his country of origin or nationality, is compelled to leave his place of habitual residence to seek refuge in another place outside his country of origin”.
3 Abuya, E.O. Revisiting Liberalism and Post Colonial Theory in the Context of Asylum Applications pp217
4 Kenya Refugee Act No. 13 of 2006

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NON-REFOULEMENT POLICY
The Convention1 on the status of Refugees bars the contracting states from expelling
refugees to areas where their lives and freedom would be threatened.
Such threat should be on account of race, religion, nationality, membership of a
particular social group or political opinion.
The Cambridge Roundtable2, defines refoulement to include:-
a. Certain interception practices
b. Rejection at the frontier, or indirect refoulement
All actions constituting ‘refouler’ return, of refugees carried out by individuals and
bodies acting on behalf of the state, exercising governmental authority at points of
embarkation, in transit, in international zones, at borders, beyond borders in other
countries or on the high seas amount to refoulement3.
Derogation on the non-refoulement policy is only permissible on overriding grounds of
national security and/or public safety4.
However, even on the grounds of national security and public safety, refoulement should
not be exercised where the threat of persecution, such as imminent danger of torture or
cruel, inhuman or degrading treatment or punishment where such treatment falls within
the scope of non-derogable customary principles of human rights.
As such before refoulement, due process of law and reasonable steps must be taken to
ensure the admission of the individual concerned to a third country.
The Ministerial Declaration of December 20015 went as far as to declare that the
principle of non-refoulement has acquired the status of jus cogens.
The Convention Against Torture and other Cruel, Degrading and Inhuman Treatment or
Punishment also addresses the responsibilities of parties pertaining to aliens present in
their jurisdictions who are fleeing the threat of torture in foreign countries to the effect
that no state party should expel, return or extradite any person to territories where there
are substantial grounds for believing that he would be in danger of being subjected to
torture6.
The convention defines torture to include acts where severe pain and suffering is
deliberately inflicted on a person for the following purposes such as7:-
a. Obtaining information or confession from him or a third person
b. Punishment for acts committed or suspected to have been committed by the
subject of such torture or a third person.
c. Coercion and intimidation on the victim or a third person for reasons of
discrimination of any kind.

1 Article 33 (1) Geneva Convention on Status of Refugees 189 United Nations Treaty Series 137 (entered into force on 22 April, 1954)
2 Opinion and the Summary Conclusions of the Roundtable held in Cambridge, United Kingdom in July, 2001
3 UNHCR Publications, Refugee Protection in International Law Perspective
4 Geneva Convention on Status of Refugees 189 United Nations Treaty Series 137 (entered into force on 22 April, 1954) Article 33 (2)
5 Ministerial Meeting of States Parties to the 1951 Convention and/or 1967 Protocol, which was co-hosted by the UNHCR and the Government of Switzerland in Geneva
on 12-13 December, 2001
6 Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Assembly Resolution 19/46 of 10
December, 1984
7 Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Assembly Resolution 19/46 of 10
December, 1984 (entered into force on 26 June, 1987)

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However, such pain and\or suffering must not arise from any sanctions lawfully inflicted.
The torture must also be institutionalized as to be meted by state officials and\or state
organs such that the victim of such action has no legal recourse whatsoever in the state of
his residence.
In a Canadian case of 2002, it was held that international law generally rejects
deportation to torture, even where national security interests are at stake arguing that the
convention against torture in international law has a dominant status on the international
plane categorically rejects state action that may lead to torture generally, and deportation
to torture specifically. In the judgment, the judges went further as to say that such threat
to the safety of the citizens of the host nation must be serious and supported by evidence
of substantial threatened harm8.
Article 33(2) of the 1951 convention which provides an exception to the non-refoulement
policy sets out the grounds for refoulement as strictly:-
a. of a case of serious threat to the national security of the host country
b. of a case of proven and grave criminal record constituting a continuing danger to
the community
The updated UNHCR Guidelines on international Protection on the application of the
expulsion clauses propose that a serious crime refer to a capital crime or a very grave
punishable act. This would include homicide, rape, arson, and armed robbery.
Refugees that pose such danger may be expelled in pursuance of a decision reached in
accordance with the due process of law9.
In reaching such a decision to return or deport refugees on the basis of the provision of
Article 33(2), the following considerations that are concomitant to the Article must be
addressed;-
a. there must be a rational connection between the removal of the refugee and the
elimination of the danger
- As such refoulement must be the very last resort in the elimination of the
danger, where such danger posed by the refugee outweighs the risk the
refugee will be exposed to upon refoulement.
b. The refugee should be allowed reasonable period of time to obtain admission to
another country10.

8 Suresh V. Canada (Minister of Citizenship and Immigration)


In our view, the prohibition in the ICCPR [International Covenant on Civil and Political Rights] and the CAT [Convention Against Torture] on
returning a refugee to face a risk of torture reflects the prevailing international norm. Article 33 of the Refugee Convention protects, in a limited way,
refugees from threats to life and freedom from all sources. By contrast, the CAT protects everyone, without derogation, from state-sponsored torture.
Moreover, the Refugee Convention itself expresses profound concern for refugees’ and its principal purpose is to ‘assure refugees the widest possible
exercise of . . fundamental rights and freedoms’ (Preamble). This negates the suggestion that the provisions of the Refugee Convention should be
.
used to deny rights that other legal instruments make universally available to everyone… the threat must be “serious,” grounded on objectively
reasonable suspicion based on evidence, and involving substantial threatened harm.
9 Kenya Refugee Act No. 13 of 2006 Section 21
10 UNHCR Publications, Refugee Protection in International Law Perspective

The Kenyan Refugee Act makes provisions to the effect that a refugee whose application
for refugee status has been rejected has a right of appeal to the Refugee Appeal Board

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and if aggrieved by the decision of the Appeal Board, there is a second right of appeal to
the High Court11.
The Act expressly states also that the refugee whose application has been rejected will be
allowed temporary stay pending admission to a third country12.
It also requires the relevant minister in charge to act in accordance with the due process
of law in the expulsion of a refugee13.
Section 18 of the act is an exact reproduction of Article 33(1) of the 1951 convention
which enunciates and emphasizes the non-refoulement policy.

The 1951 convention whose definition of a refugee is universally accepted by all those
nations that have ratified it including Kenya defines the refugee as any person who
owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of particular social group or political opinion, is outside his
country of nationality and is unable or unwilling to avail himself of the protection of that
country of his former habitual residence is unable or, owing to such fear is unwilling to
return to it.
In respect to the above definition, there has arisen a number of elements which defines
the provision chief among them being, “…the fear of persecution.”
In this case, “persecuted” has been interpreted to mean a threat to life or freedom as well
as other serious violations of human rights where the fear of such violations should be
well-founded, for instance, where there is evidence of past persecution and the absence
of any significant change of the circumstances14.
However, with regard to the term ‘persecution’, a legal definition of persecution for the
purposes of refugee status determination exists neither in the 1951Convention nor
elsewhere in international law.
The fact that ‘persecution’ is not legally defined has presented a scenario where various
definitions have been attempted, for instance, as being ‘the sustained or systemic
violation of basic human rights demonstrative of a failure of state protection’, or even
more simply as serious harm plus the failure of State protection.
The development of international human rights law subsequent to the adoption of the
1951 Convention has helped to advance the understanding, that persecution comprises
human rights abuses or other serious harm, often but not always with a systematic or
repetitive element. While it is generally agreed that ‘mere’ discrimination may not, in the
normal course, amount to persecution in and of itself (though particularly egregious
forms undoubtedly will be so considered), a persistent pattern of consistent
discrimination will usually, on cumulative grounds, amount to persecution and warrant
international protection.

11 Kenya Refugee act No. 13 Section 10 (1) (3)


12 Kenya Refugee act No. 13 Section 12
13 Kenya Refugee act No. 13 Section 21
14 Macdonald, A. I and Blake, J. N. Macdonald’s Immigration Law and Practice, 4th edition 1999 Butterworths at pp386
12.37 ‘Persecuted’ whereas a threat to life or freedom for the relevant reason will always amount to persecution, by the word and other serious violations of
s
human rights would also qualify

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Therefore, in light of the above, in May 2002, the Council of Europe opened for
signature Protocol No.13 to the 1950 European Convention15.
This new protocol bars the death penalty even ‘in time of war or imminent threat of war
and on its entry into force will have the effect of barring in absolute terms the return of
an individual to situations where he or she may face the death penalty.

This is so as the death penalty involves to a better part the taking away of somebody’s
life which amounts to a direct threat to life which amounts to persecution.

Another issue of contemporary concern is the question of exceptions to any general


declaration of cessation. The exceptions include:
a. That on the basis of ‘compelling reasons arising out of previous persecution’ as
referred to in Article 1C (5) and (6). This is now well established in State practice
as extending beyond the actual terms of this provision to apply to refugees under
Article 1A(2) of the 1951 Convention. In such circumstances, the best State
practice in keeping with the spirit of the Convention allows for the continuation
of refugee status, although States sometimes accord such individuals subsidiary
statuses, which may not necessarily provide a secure legal status or preserve
‘previously acquired rights’ as stipulated by the Executive Committee.
b. Other exceptions involve those for whom return it is prohibited under human
rights treaties, including;
c. There may also be strong humanitarian reasons for not applying cessation to
refugees whose long stay in the host country has resulted in strong family, social,
and economic ties.
Cessation in relation to situations of mass influx which overwhelm individual asylum
processes has also been an area where States have sought to develop practice.
In Europe, there was the European Union’s Directive on temporary protection approved
in August 2001.Where access to the asylum procedure has been suspended for the
duration of temporary protection, it is now widely recognized that those affected by the
ending of temporary protection must be allowed to apply for asylum if they wish and
must also be able to validate compelling reasons arising out of past persecution16.

15 European Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty, Protocol No. 13, 1950 European
Treaty Series 187
16 UNHCR Publications, Refugee Protection in International Law Perspective

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SAFE THIRD COUNTRIES
Where a receiving country intends to remove a refugee lawfully, the refugee has a right
to be afforded an alternative country of refuge1.
The Refugee Act of Kenya provides to the effect that where a refugee has exhausted the
legal avenues in seeking refugee status and consequently, his appeal has been
unsuccessful then he should be allowed reasonable time that does not exceed three
months to seek admission to a country of his choice2.
However, this is as far as the provision goes, it does not give any guidelines as to the
seeking of admission to another country of refuge.
In the United Kingdom, for instance, which is a signatory to the 1951 Convention as well
as the 1967 Protocol3, the rules state that the secretary of state may decide not to consider
the substance of a person’s removal to a third country does not raise any issue as to the
United Kingdom’s obligations under the convention and protocol4.
A breach of the state’s obligations under the 1951 convention and the 1967 protocol will
suffice if5:-
a. Removal of the applicant to the third country will expose him to a risk of
refoulement.
b. Removal of the applicant to the third country will expose him to a risk of any
persecution irrespective of the degree of such persecution even if it be to a lesser
degree than the one likely to be suffered upon refoulement.
c. Though breach may be ineffective where the third country returns the applicant to
the state of first asylum, repeated unsuccessful removals of the applicant by the
state will constitute an inhuman treatment.
Therefore such removal should normally only be exercised once and where the applicant
is returned then the claim should be dealt with substantively.
In the removal of a refugee to a third safe country the refugee should be afforded an
opportunity to select his removal destination.

1 Geneva Convention on Status of Refugees 189 United Nations Treaty Series 137 (entered into force on 22 April, 1954)
2 Kenya Refugee Act No. 13 of 2006 Section
3 Protocol Relating to the Status of Refugees 31 January, 1967 606 United Nations Treaty series 267 (entered into force on 1 October 1967)
4 Davies, P. Immigration Law, 7th edition 2000, Sweet & Maxwell pp407
5 Macdonald, I and Blake, N. J. Macdonald’s Immigration Law and Practice, 4th edition, 1999, Butterworth’s at pp 405

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In respect to safe passage of refugees to safe third countries as well as in deciding on an
application for refugee status, some particular issues have been enshrined as of
importance and priority.
These issues include:-

Family Unity
The Final act of the conference6 which adopted the 1951 convention recommend that
governments the world over should take measures to ensure that the unity of the refugee
families is maintained.
The Conclusions of the November 2001 expert roundtable in Geneva affirm that
‘Respect for the right to family unity requires not only that States refrain from action
which would result in family separations, but also that they take measures to maintain
the unity of the family and reunite family members who have been separated’
In other countries, particularly the United Kingdom during the period from 1990 to 1994
recognized the nature of the Somali family thus in providing exceptionally for
consideration:-
a. Of relatives other than the spouse and children dependent on the refugee’s
immediate family unit before the refugee came to this country.
b. Those of the family whereas unable to meet the family policy but who are
themselves refugees by convention definition
The Final act 1951 reaffirms that the unity of the family is an essential right of a refugee.
This right was based on the provisions of international human rights and international
humanitarian law which applies to all human beings regardless their status.
Therefore, as pertaining to refugees, the responsibility to uphold this right falls also in
part on the country of asylum.
In the expulsion, deportation and\or even in the granting of safe passage to a third
country, a state must balance a number of rights and considerations, which restrain its
margin of action if it wishes to separate a family.
Grant of safe passage to a third safe country could interfere with the right to family unity
if international standards are not adhered to.
In a Danish case, deportation order where an Iranian refugee had been found guilty of
drug-trafficking was quashed on the grounds of the refugee being unable to reunite with
his family in Iran as his family was settled in Denmark7.

6 Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Person, 1951
7 Amrollahi v. Denmark (Application No. 56811/00, judgment of July, 2002) The Court found his expulsion to be in accordance with the law but that,
since it was de facto impossible for him and his family to continue their life together outside Denmark, it would be disproportionate to the aims pursued
In Kenya, the unity of the family should not only be considered in respect to admission
and in violation of the right to respect for family life be disproportionate to the aims pursued and in violation of the right to respect for family life.
of refugees, whose applications have been rejected, to third safe countries but also in the
deciding on an application for refugee status.

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Therefore, the refugees who are being denied entry and asylum in Kenya should be well
screened individually to establish if there are any existing family connections and if there
can be made any family connections with other refugees already living in Kenya then
such relations should be given primary consideration and be used to determine
disposition of the asylum seeker rather than a general ban on all refugees.

The question of such existence or non-existence of a family should essentially be a


question of fact, which must be determined on a case-by-case basis, requiring a flexible
approach which takes account of cultural variations, and economic and emotional
dependency factors8.
For the purposes of family reunification, ‘family’ should include, at the very minimum,
members of the nuclear family (spouses and minor children) 9.
If families are kept together or are able to reunite, this greater stability significantly
enhances refugees’ ability to become self-reliant and thus promotes the full realization of
durable solutions10.

8 UNHCR Publications, Refugee Protection in International Law Perspective (available on the UNHCR website visited on 24 March, 2007)
9 Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Person, 1951
10 Macdonald, I and Blake, N.J. Macdonald’s Immigration Law and Practice, 4th edition, 1999, Butterworth’s

CONCLUSION

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In conclusion, it is perhaps fitting to remember the context in which the issues raised in
this paper operate. What better words to choose than the opening statement at the
December 2001 Ministerial Meeting of States Parties to the 1951 Convention and/or 1967
Protocol made by President Vaira Vike Freiberga of Latvia, who fled her country as a
child after the Second World War:
No one leaves their home willingly or gladly. When people leave their earth, the place of their birth, the
place where they live, it means that there is something very deeply wrong with the circumstances in their
country. And we should never take lightly this plight of refugees fleeing across borders. They are signs, they
are symptoms, and they are proof that something is very wrong somewhere on the international scene.
When the moment comes to leave your home, it is a painful choice . . . It can be a costly choice. Three
weeks and three days after my family left the shores of Latvia, my little sister died. We buried her by the
roadside and were never able to return and put flowers on her grave. And I like to think that I stand here
today as a survivor who speaks for all those who died by the roadside – some buried by their families and
others not. And for all those millions across the world today who do not have a voice, which can be heard.
They are also human beings, they also suffer, and they also have their hopes, their dreams and their
aspirations. Most of all, they dream of a normal life . . . I entreat you . . . when you think about the problem
of refugees to think of them not in the abstract. Do not think of them in the bureaucratic language of
‘decisions’ and ‘declarations’ and ‘priorities’ . . . I entreat you, think of the human beings who are touched
by your decisions. Think of the lives that wait on your help1.

1 UNHCR Publications, Refugee Protection in International Law Perspective

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