FACULTY OF LAW
Lund University
Messai Yahia Ali
The protection of Prima Facie Refugees under
International Law: A Case study of Kenya
JAMM04 Master Thesis
International Human Rights Law
30 higher education credits
Supervisor: Göran Melander
Term: < VT2013>
1
Contents
Summary ............................................................................................. ........................ ..........1
Abbreviations ................................................................................................................. ........2
1 Introduction
1.1Overview............................................ .................. .............................................................4
1.2 Purpose and Research Question ..........................................................................…..........6
1.3 Methods and Materials ................... .................. ...............................................................7
1.4 Delimitations......................................................................................................................7
1.5 Structure of the Paper...................... .............................................. ...................................8
2 Historical Background, and Definitions
2.1 Historical Background................ .......................................................................................13
2.1.1 Conclusion……………………………………………………....…………... 20
2.2 Definitions ........................................................................................................................21
2.4 The relationship PFRSD and individual refugee status..................... ..................25
2.5 Conclusion…………………………………………………………………..…27
3. The Legal Foundation of PFRSD
3.1 Under the Convention on the Status of Refugee................................................... 28
3.2 Under the African Refugee Convention............................................................ 30
3.3 UNHCR Handbook ................. ................... .................... ................... ................30
3.4 ExCom ............................ ................................................................................. 31
3.5 Conclusion......... .................. .................................. ........................................... 32
4. The Legal Status and the Rights Attached to PFRSD
4.1 The Legal Status of PFRSD........... ............................ ...................................... 33
4.1.2 Conclusion........... .......................... ......... .........................................................37
4.2 Rights Attached ……………………………………………………...………….38
4.2.1 Under the Geneva Convention ................................ ........................................39
4.2.2 Under the African Refugee Convention.... ....................................................... 40
4.3 General Conclusion........... ...................... . ............................................ .......... 41
5. The Practical Aspects on the Standards of Treatment
5.1 General Overview....................................................................................................45
5.2 Prima Facie refugees in Kenya……………………………………………………47
5.2.1 Introduction…………………………………………………………………47
5.2.2 General Frame Work of Domestic Refugee Law......... ............................. 49
5.2.2.1 The Definition of Refugee………………………………………….49
5.2.2.2 Explanation on the definition of Prima Facie Refugee…………….50
5.2.3 Refugee Status Determination including Prima Facie Determination...……..53
5.2.4 Application of Human Right Convention to Prima Facie Refugees…………55
5.2.5 Basic Standard of Treatments……………………………………..…………56
5.2.6 The Protection Gap........ ...................................................................................59
5.2.6.1 Physical Security Threat………………………………..……………..60
5.2.6.2 Limitation on the Right of Movement...... .............................................63
5.2.6.3 The Right to Work........................................... ......................................67
5.2.6.4 The Right to have Travel Document and other rights............ ..............69
6.1 General Analysis and Concluding Remark............................ ..................................71
6.2 Summary Conclusions...................... ........................... ............................... ...........75
Supplement A Refugee Act of Kenya 2006…………..………………………………….…78
2
Bibliography……………………………………………………………………………93
Table of Cases………………………………………………………………………....102
3
Summary
Protection of prima facie refugees was recognized as a big concern in the 1980s and 1990s;
however, most of the challenges are still unresolved and in fact forgotten. Today most of the
world’s prima facie refugees especially in Africa are restricted in remote camps without a normal
and dignified life. While the right to life of these refugees might be protected through the
principle of non-refoulement, this right has come at the expense of other fundamental rights.
The general situation and the standard of treatment offered are far from being satisfactory. Rights
stipulated under international refugee and human right laws like the right to physical security, the
right to wage-earning employment, freedom of movement outside the camp, access to court and
other fundamental rights are not met according to the standards set by law.
The legal status and rights of prima facie refugees are not clearly addressed under international
refugee law. Neither the Convention on the Status of Refugee nor the African Refugee
Convention can be regarded as a direct source. The UNHCR Handbook is the only direct source
that gives a general description about the procedure on which they can be recognized. UNHCR
has issued a number ExComs and explanatory notes that provide minimum standards of
treatments for asylum seekers in camp situations. However none of these documents explained
the status in relation to Geneva Convention. Accordingly, this paper has tried to find alternative
arguments as to how the status and rights can be guaranteed under international refugee law.
The impact of this legal uncertainty, which is the main focus of this thesis, has not been given
enough attention by the international community. The connection between the legal ambiguity
under international law and the protection of prima facie refugees is addressed in the thesis, by
taking the sample case of Dadaab camp in Kenya. States practice in Africa, especially in Kenya,
reveals that these refugees have been treated below the standards set by law. The Government of
Kenya has adopted an encampment policy in the early 1990 and limit prima facie refugees in
remote desert camps. Dadaab, one of the biggest refugee camps in the world and in Kenya, was
established as a result of this policy and it became a tool to secure only immediate refugee needs.
The government has opted to provide an ad hock or emergency procedural solution until the
situation in the country of origin gets resolved. The domestic refugee law of Kenya fails to
4
address explicitly to the standards of treatment to prima facie refugees with the exception of few
rights. On the other hand, Human Right Conventions and the different ExCom recommendations
produced by UNHCR provide certain standard of treatments.
The thesis argues that it is difficult to establish a direct connection between the legal cavity at the
international level and the protection gaps in Dadaab. Even though International Refugee laws
and domestic refugee law of Kenya fail to address most of the rights explicitly, Human Right
Contentions ratified by the state can be applicable. Moreover, the different ExCom
recommendations produced by UNHCR provide certain standard of treatments. The causes of
protections gaps or violations in the case of Kenya do not emanate from the legal regime rather
failure of implementations. The reasons are rather associated with the state internal issues, such
as economical capacity, political willingness, security and other reasons depending on the
specific category of right violated. However, it is the recommendation of this paper that, this
should not negate the importance of developing clear international refugee law to prima facie
refugees. Their status and rights, in relation to the Geneva Convention which is considered as a
core stone and central in the international refugee protection regime, needs to be clarified.
5
Preface
I would like to take this opportunity to acknowledge the extensive knowledge I acquired in
writing this paper. My earlier interest and dream to explore on the issue of refugee law has
partly been achieved. However, this would not have been possible without the support I received
from every individual who has contributed in one way or another from the inception of this thesis
paper till its completion. Primarily I would like to express my gratitude to my supervisor
Professor Göran Melander, for his continuous guidance and assistance. Despite the complication
associated with the research topic, I am extremely delighted with his considerable, invaluable
direction, support and patience throughout the process of writing this paper. Every time I turned
to you, I have widened my perspectives. My thanks also extend to UNHCR stuff, Mr. Mohsen
Ahmed, Head of the Refugee Status Determination Unit in Dadaab and Mr Kortsaris, Periklis
(Senior Protection Officer); for their remarkable cooperation in providing information and expert
opinion on the subject matter. Their invaluable insight has helped me to see the different angles
and arguments and into developing the work in general. Special thanks also go to my friends
especially Dr Michael McEachrane, Elen karageorgiou, Yodahe Lamore for all thier
contributions and support, and to all that I have had the pleasure to meet and share knowledge
during my two academic years, I thank you all.
6
Abbreviations
ExComm
Executive Committee of the United Nations
High Commissioner for Refugees
GA Resolution
General Assembly Resolution
Geneva Convention
The 1951 Convention Relating to the Status
of Refugee
Handbook
The Handbook on Procedures and Criteria
for Determining Refugee Status under the
1951
Convention and the 1967 Protocol
relating to the Status of Refugees
ICCPR
International Covenant on Civil and
Political Rights
ICESR
International Covenant on
Economic, Social and Cultural
Rights
IRO
International Refugee Organization
PFRSD
Prima Facie Refugee Status Determination
PFRS
Prima Facie Refugee Status
RSD
Refugee Status Determination
OAU Convention
Convention Governing the Specific Aspects
of Refugee Problems in Africa
UDHR
The Universal Declaration of
Human Rights
UNHCR
United Nations High Commissioner for
Refugee
7
1 Introduction
1.1 Overview
The primary responsibility of providing protection lies with states. When governments are
unwilling or unable to protect their citizens, individuals may suffer such serious violations of
their personal rights that they are willing to leave their country of origin to seek international
protection in another country. International protection becomes an issue when states fail to
provide the basic rights of refugees guaranteed under international law, in which the international
community assumes the responsibility of ensuring that those basic rights are respected.
1
The term prima facie refugee is used when there is a large-scale influx of refugees, although
international refugee law does not provide clear definition or provide the criteria to be fulfilled
by prima facie refugees. The procedure, PFRSD, is a mechanism that has been devised, as an
emergency basis by UNHCR, for responding to large-scale influxes of refugees and when the
states’ capacity to grant refugee status through individual status determination is challenged.2
Although today prima facie refugees constitute a large portion of world’s refugees3, the
international community has failed to address their protection issue at large. It is a sad but
common feature of mass influx situations that prima facie refugees are denied many of the
economic and social rights stipulated by the Refugee and Human Rights Conventions.
4
Even
though, the full applicability of the Geneva Convention is yet to be clarified, it is beyond doubt
that, the standard of treatments offered in camps is below the standards set by the International
Human Rights Conventions.
1 Kate Jastram and Ms. Marilyn Achiron, “Refugee Protection : A Guide to International Refugee Law” Handbook
available at http://www.ipu.org/pdf/publications/refugee_en.pdf
2 Bonaventure Rutinwa, (2002) ‘Prima Facie Status and Refugee Protection’ Working Paper No 69, United Nations
High Commissioner for Refugees,
3 Jean-François Durieux, (2008) “The Many Faces of “Prima Facie”: Group-Based Evidence in Refugee Status
Determination” Centre for Refugee Studies, Vol 25, no 2 , pp 1
4 Jean-François Durieux and Jane McAdam (2001) “Non-Refoulement through Time: The Case for a Derogation
Clause to the Refugee Convention in Mass Influx Emergencies “International Journal of Refugee Law, Volume 16,
pp 4- 24.
8
The main focus of most of the contemporary literatures on prima facie refugees is in connection
with the legal source of PFRSD. The international refugee law failed to address the legal
foundation of the procedure. Since, it is not clearly defined under refugee law; the rights and
status acquired through the procedure are subject to different interpretations. Accordingly, the
thesis presents the different scholarly arguments and the alternative legal interpretations in which
rights can be entitled under different international refugee law instruments, in the absence of
clearly codified refugee laws.
The paper as its main theme, addresses the extent to which this legal uncertainty affected the
international protection of prima facie refugees, by taking the sample case of Dadaab camp in
Kenya. Dadaab is selected, because it is one of the biggest refugee camps in the world and it can
portray the general situation and the protection gap that exists in Africa. The treatment offered in
Dadaab is below the standard set by the 1951 Convention Relating to the Status of Refugees
(Geneva Convention), Convention Governing the Specific Aspects of Refugee Problems in
Africa (OAU Convention) and International Human Right Conventions. Although Kenya has
ratified the Geneva and OAU Conventions, and has incorporated it in its domestic refugee law;
the rights of prima facie refugees are not addressed explicitly except for few rights. The
applicability of the Human Rights Conventions, on the other hand, is not controversial. Thus the
paper will discuss the governance of both refugee and human right laws; and the impact of the
legal uncertainty at the international refugee law level to the standard of treatments offered in
practice.
1.2 Purpose and Research question
As stated earlier, international refugee law has failed to address clearly the legal nature
associated with prima facie refugees. Accordingly the main purpose of this thesis is to identify
the effects of the unclear legal status and rights of prima facie refugees to their international
protection. The research will address the legal issue both from international and domestic level
(Kenya). To achieve this objective, this research raises the following questions: Firstly, the legal
nature of PFRSD, will be examined in order to understand the legal status and rights of prima
9
facie refugees under international refugee law. The research questions attributed to this issue
are:

Where does the legality of PFRSD emanate?

Is the procedure (PFRSD) legal according to international refugee law instruments?

What kind of status can be acquired through the procedure?

What are the rights applicable to refugees recognized through PFRSD?
Secondly, since the case study of Kenya is incorporated, the legal status of prima facie refugees
within domestic law will be examined. The sub questions that help to capture the issue are:

Does the domestic refugee law of Kenya address prima facie refugees?

Do the Human Rights Conventions ratified by the state apply?

If so what are the applicable rights?
Thirdly, the gaps created in protecting prima facie refugees from state practice point of view
have been addressed through the following sub questions.

What type of protection challenges does a prima facie refugee encounter in practice?

How does applicable refugee and human right laws responded to the protection
challenges?
Lastly, in order to identify if the legal nature of prima facie refugees, both at the international
and domestic level has interfered with the protection challenges, the following sub questions will
be addressed:

Is there a connection between the legal uncertainties associated with prima facie refugees
and the protection gaps created?

How the legal status of prima facie refugees does in the domestic law of Kenya and the
Human Rights Conventions ratified by the state, affect their protection?

What are the main causes of the protection gaps?

Does the legal uncertainty at the international level really affect the protection?
1.3 Research Methods and materials
In order to find answers the research questions, a traditional legal methodology, encapsulating
literature from recognized scholars, is mainly used. Literatures, scholar arguments about the
subject matter are discussed in the first two chapters. In the section that discusses the legal status
10
and rights, international, regional and domestic refugee law instruments and Human Right
Conventions in addition to the literatures are examined. Since United Nation High Commissioner
for Refugee (UNHCR) invented PFRSD, materials produced by the office are also used to
further understand the concept. UNHCR ExCom, the Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees (the Handbook) , and further official reports are analyzed. The thesis chose
the case study of prima facie refugees in Kenya, particularly in Dadaab camp, in order to show
the challenges of international protection from a practical perspective and to present the general
over view of African state practice. The refugee Act of Kenya, applicable human right laws and
information obtained through email correspondence with UNHCR Kenya has also been used as a
domestic source.
1.4 Delimitation
Due to the broadness of the topic, the paper acknowledges certain important delimitations.
The protection gap in the context of camp refugees is very broad and a range of refugee rights
from refugee and human right laws perspectives can be addressed. Due to spacing problem, the
paper will only discuss the most fundamental and vivid rights that are particularly applicable to
prima facie refugees.
1.5 Structure of the Paper
Besides this introduction the paper contains five chapters. The thesis has dedicated the next
three chapters, to clarify the legal nature of the prima facie refugees, because the researcher
thinks that it is important to understand the concept in order to identify the relationship between
the legal nature associated with prima facie refugees and protection challenges.
The next chapter, chapter two, presents the historical background and different definitions of
PFRSD. Interpretations and explanations adopted by different authors in connection with the
history will be enlightened. Its general features and the relationship it has with individual
Refugee Status Determination (RSD) will also be part of the clarification.
11
The third chapter presents the legal source of PFRSD through different interpretations. It will
explore if the different refugee law instruments actually support the existence and use of PFRSD.
From the regional instruments, only OAU is selected because prima facie refugees in Dadaab
camp are examined as a case study.
The fourth chapter discusses the legal status that can be obtained as a result of PFRSD, and rights
attached in the absence explicit legal source. Various Prominent arguments with regards to the
legal status will be presented.
Most of the scholars argued that PFRSD can yield to a
conventional refugee status, while some argue otherwise. The chapter will also discuss the
various ways of connecting rights of prima facie refugees to the Geneva Convention, OAU
Convention and other refugee related legal instruments using general principles of refugee law.
Even though the status of prima facie refugees as conventional refugees is not clear, the chapter
concludes that their rights can be found under the Geneva Convention and OAU Convention.
Chapter five presents the general attitude of African states with focus in Kenya. Primarily, it
presents the general description of domestic refugee law and the practice of PFRSD in Kenya.
Secondly it examines the gaps created in protecting prima facie refugees in Dadaab in light of the
Geneva Convention, OAU Convention, domestic refugee law of Kenya, and Human Right
Conventions. In general the treatment offered is below the standards set by these instruments and
accordingly the chapter discusses the applicability of selected rights.
Chapter six offers general analysis and concluding remarks. The aim of this chapter is to
highlight the main causes of gaps created in protecting prima facie refugees and analyze it with
the international and domestic refugee law of Kenya. The relationship between the legal
uncertainties established at the international level, domestic refugee law of Kenya, ratified
Human Right Conventions and the various violations will be analyzed.
12
2 Historical background,and Definitions
2.1 Historical background
The concept of PFRSD originated initially due to the new developmental dimension of refugees
and the challenges, which involves mass influx situation of asylum seekers especially in
developing countries, where individual adjudication was basically impossible and UNHCR had
little ability to demand nations for a solution.5 In order to cope with the new situation, UNHCR
came up with the procedure after the exodus of refugee situations in the 1960s. Even though it is
a newly developed concept, it traces its origin since the inception of the League of Nations.
The League of Nations dealt with successive categories of refugees, and its approach to the
refugee’s definition was mainly group based. In determining whether a particular category of
persons was a refugee, regard was made to the objective situation in the country of origin. 6 If by
this mechanism, a group is determined to be a refugee, the individual member of the group could
benefit from the refugee status. It was apparent that under the League of Nations, individual did
not have to substantiate a claim in detail as is the case today. In a group determination, a lighter
burden of proof is required in that the individual had to show that he or she had left the country
of origin for a reason leading to the prima facie determination of group refugee character and
otherwise to show that he or she was a bona fide refugee.7 This general group determination has
therefore created a type of prima facie determination that a member of a particular group
qualifies to be a refugee.
After World War II, the problem of refugees immediately became the concern of the newly
created United Nations Organization, namely the International Refugee Organization (IRO). In
order to deal with the major refugee problem existing at the close of the war, the United Nations
General Assembly established IRO by a Resolution of 15 December 1946. 8
5 Jackson Ivor C. Jackson, (1999) “The Refugee Concept in Group Situations”, Martinus Nijhoff Publishers, , pp 25
6 Ibid, pp 1
7 Ibid, pp 2
8
Ibid, pp1
13
Within the IRO mandate, in order for a person to be a concern of the organization, he or she had
to prove that, assistance of the organization was needed in order to be repatriated or he or she
had a ‘valid objection ‘not to return to the country of origin.9 These valid objections were
mainly, 1 persecution or fear of persecution because of race, religion, nationality or political
opinion and, 2 objection of a political nature judged by the organization to be valid. While in
principle, these are objective standards, they were conditions which had to be fulfilled by a
refugee in order to benefit from the services of the organization; and in practice these criteria
started to give the refugee definition in the IRO Constitution a more individualist characteristic10.
In other words a refugee was required to provide more detailed explanations as to why he or she
did not wish to return to the country of origin.
At a later stage, clearly individual refugee definition was introduced into the Statute of UNHCR
in 1950 and into the Geneva Convention in 1951. According to this definition a refugees is a
person who is outside his or her former country of origin because of a well-founded fear for
reasons of race, religion, nationality political opinion, or membership of a particular social
group.11 It has been argued in different literatures that the definition has only individual
character, and the procedure to determine the refugee status determination (RSD) after the
introduction of the Geneva Convention involves case by case demanding detailed information of
the individual asylum seeker. However, when Mass Influx Situation of asylum seeker
overwhelmed the RSD system in some countries especially in the third world, the institution
(Individual RSD) proved to be incapable and the need for the new system was more apparent
than any time.
In 1956 UNHCR intervened on behalf of the Hungarians fleeing their country in such large
numbers that no individual eligibility determination was feasible.
12
This was the first
9
Ibid, pp1
Ibid, pp 2
11
Article 1 of the 1951 Refugee Convention
12 UNGA res 1006 (ESIl), 9 Nov. 1956, continued in UNGA res. 1039 (XI), Report of the UNHCR of 23 Jan. 1957.
In the latter resolution the General Assembly requested the High Commissioner 'to continue his efforts to effect
solutions in accordance with the Statute of his Office and the programme of the United Nations Refugee Fund, under
due safeguards in accordance with his responsibility under the said statute to provide international protection to
refugees within his mandate.
10
14
development in which the High Commissioner (HC) assisted groups of refugees. 13 Resolution
1006 on the Situation in Hungary was a result of the large numbers of refugees obliged to leave
Hungary.14
Under sub section II article 1 of the Resolution, the General Assembly (GA)
requested the HC to 'consult with other appropriate international agencies and interested
governments with a view to making speedy and effective arrangements for emergency assistance
to refugees from Hungary”.15 It was argued that the Hungarian exodus was indeed a result of
events prior to the “Geneva Convention” because the Communist party that was the cause for
persecution had established in Hungary in 1947-48, and therefore they fulfill the criteria under
the Convention. 16
A similar problem (mass influx situation) emerged when new group of refugees started to cross
borders in a large group. These refugees were from Asia, Africa and Latin America. In Africa
particularly during the 1960s, violent decolonization, and post-independence strife increased the
strategic significance of conflicts outside Europe.17 These conflicts generated vast numbers of
refugees in Africa. The distinction between the old and new categories of refugees by UNHCR
has brought a new Era and different challenges with the mandate of the UNHCR, and it was
apparent that the traditional concepts and legal definitions that UNHCR had used in Europe
would not apply to these refugees.18
In response to the new challenges, the General Assembly passed a number of resolutions
extending the mandate of UNHCR. Formal authorization to exercise the “good office” function
was granted after the emergence of the new refugee situation and as the need for assistance was
immediate and grave. As used in international relations traditionally, good offices refer to the
13 Davies,S.,(2008), “Redundant or essential? How politics shaped the outcome of the 1967 Protocol’, International
Journal of Refugee Law, 703-729 ,[online]
available at http://ijrl.oxfordjournals.org/content/early/2008/02/16/ijrl.eem068.full.pdf
14 Ibid
15 UNGA res. 1006 (ESIl), 9 Nov. 1956 Section II Sub Article (1)
16 L. Holborn (1975), “Refugees - A Problem of Our Time: The Work of the United Nations High Commissioner
for Refugees”, pp 657- 659
17 Gil Loescher , (2003), “The UNHCR and World Politics” under chapter ‘The Good Offices’ and Expansion into
Africa Under Felix Schnyder”A Perilous Path Published to Oxford Available Online at
http://www.oxfordscholarship.com/view/10.1093/0199246912.001.0001/acprof-9780199246915-chapter-5#acprof9780199246915-note-245
18
Ibid
15
role of an impartial intermediary assisting in the solution of a dispute between two states. 19 It has
been on the basis of the Good Office Resolution that the UNHCR moved in to grant assistance to
new refugees in Africa and later in Asia.
The Algerian refugee situation in the early 1960's was one of events that opened a new policy era
for UNHCR. The Liberation War in Algeria in the late fifties gave rise to new and serious
refugee problems, and in 1957 it reached new levels of brutality, prompting the exodus of
thousands of refugees into neighboring above all in Tunisia and Morocco.
20
Following an
appeal from the Tunisian and Moroccan Governments the HC assisted these refugees. 21
The
HC assistance was later endorsed by GA Res. 1286 (XIII) in 1958, which recommends the
UNHCR “…to continue his action on behalf of the refugees in Tunisia on a substantial scale and
undertake actions in Morocco”.
22
Similarly, resolution 1389 (XIV) and 1500 (XV) authorized
the HC “to continue his efforts on behalf of refugees from Algeria in Morocco and Tunisia”. 23
The involvement of UNHCR in this case was debatable because it was argued that Algerians did
not meet the terms of the legal refugee definition. In this, the refugees for whom the HC was
called upon to extend were for the first time not described as refugees within the competence of
the United Nations unlike the Hungarian case.
With the new mandates, the involvement of UNHCR extended, although it appears to give
UNHCRs action separate basis from the Statutes authorization of international protection.24
These developments took place in order to allow UNHCR to aid refugee groups who did not
clearly come within the Statute definition, or for whom the HC wished to avoid making a Statute
eligibility determination, in its “good office” capacity. 25 One of the characteristics of the “good
L. Holborn (1975), “Refugees - A Problem of Our Time: The Work of the United Nations High Commissioner for
Refugees”, pp 657- 659
20
United Nations, General Assembly, Thirteenth session, Supplement No.11, Report of the United Nations High
Commissioner for Refugees p.6
21
Ibid
22
United Nations , General Assembly Resolution 1286 (XIII), 5 December 1958.
23
United Nations , General Assembly Resolution 1389 (XIV) and Resolution no 1500, 5 December 1960.
24
Holborn, Louise (1975), “Refugees - A Problem of Our Time: The Work of the United Nations High
Commissioner for Refugees”, V II, pp 657- 659
25
Gil Loescher , (2003), “The UNHCR and World Politics” under chapter ‘The Good Offices’ and Expansion into
Africa Under Felix Schnyder”A Perilous Path Published toOxford Available Online at
http://www.oxfordscholarship.com/view/10.1093/0199246912.001.0001/acprof-9780199246915-chapter-5#acprof9780199246915-note-245
19
16
office” mandate is that it aids refugee groups who did not clearly come within the Statute
definition. Briefly, as stated earlier, it can be said that three criteria must be fulfilled if a person
wishes to be recognized as a mandate refugee. He must be outside his country of origin; he must
be unable or unwilling to avail himself of the protection of his country of origin; he must have a
well-founded fear of persecution in his country of origin on account of his race, nationality,
religion or political opinion. When applying these criteria to refugees who, so far, have been
assisted as good office refugees, it is found that these criteria are not fulfilled in all cases.26
Prima facie Status determination emerged and developed in conjunction with the good office
procedure and particularly when individual refugee assessment seemed to be unrealistic. Both
procedures were pragmatic and strategic, as opposed to the legalistic, approaches to the problem
of mass human displacement which was becoming increasingly common. Good offices provided
a framework for flexible and convenient action.27 The intent of the 'good offices' action was
clearly to both broaden the legal scope of the refugee definition and to provide assistance to
displaced populations.28
It became an important aspect of UNHCR operations in Africa when the issue of international
protection of refugees recognized through the procedure created its own challenges. Once
refugees begun to appear in Africa, especially in the cities, who needed more than material
assistance, jobs, education, travel documents and other legal protection, it become imperative for
the UNHCR to emphasize that although the basis for its major operations in Africa was good
office, it also had the authority under the Statute to provide international protection to those
refugees entitled to that protection.29 In this regard Prince Sadruddin Aga Khan, Deputy High
Commissioner made this point to the ExCom in 1963 when he said: “ Action taken under the
Melander, Göran, (1974), “Protection of Refugees” Scandinavian Studies in Law, Vol. 18, pp. 151-178
Sadruddin Aga Khan, (1976) 'Legal Problems Relating to Refugees and Displaced Persons', R&uAl fks Coun
1976-1, 287.
28
Hyndman, J. and Nylund, B., (1998) “UNHCR and the status of prima facie refugees in Kenya”, International
Journal of Refugee Law,
29
Holborn, Louise (1975), “Refugees - A Problem of Our Time: The Work of the United Nations High
Commissioner for Refugees”, V II, pp 657- 659
26
27
17
good offices procedure can, of course, in no way prejudice the possible eligibility or ineligibility
of the refugees benefiting from such action for assistance under the mandate.” 30
The importance of PFRSD was also addressed in connection with the extent of legal protection it
can provide. In general the good office resolutions mention two categories of refugees, those
who come within the mandate of the HC and those for whom he “lends” or “extends” his good
offices. 31 If there are two separate bases for UNHCR action and two distinct type of refugees for
whom the Office can act, the question arises: To what extent can international protection be
provided for good office refugees? Are good offices refugees completely outside the HCs
mandate by definition and therefore deprived of enjoying his protection?
The primary protection offered to good office refugees was material assistance as it was
imminent, however stressing to the material assistance under the mandate of UNHCR created its
own problem at a later stage. As stated earlier the importance of international protection of prima
facie refugees comes as an issue in different cities in Africa, in which UNHCR was confronted to
define the rights and the status of these refugees. In Africa and elsewhere in the developing
world, where refugees increasingly appeared, the agency’s lawyers and staff posited a connection
between material assistance and international protection, which previously had been primarily
associated with individual determinations but increasingly seemed to call for formal, though of
necessity prima facie, group eligibility determinations. 32
High Commissioner Schnyder started to redefine good office refugees in connection with
international protection in 1965. Dr. Schnyder explained in a speech before the Hague Academy
of International Law, that “the good office refugees and statute refugees were no longer mutually
exclusive categories of refugees entitled to different kinds of services.” 33 This speech can be
interpreted as to mean that, while protection could only be granted to refugees who came within
30
A/AC.96/200 of April 1963 App II: 4 (Meeting Note) See also .. 30 L. Holborn (1975), Refugees - A Problem of
Our Time: The Work of the United Nations High Commissioner for Refugees, pp 657- 659
31
Holborn, Louise (1975), “Refugees - A Problem of Our Time: The Work of the United Nations High
Commissioner for Refugees”, V II, pp 442
32 Mariano-Florentino Cullar ‘Refugee security and the organizational logic of legal mandates’, Berkeley
Electronic Press Legal Series, Working Paper 998. PP 655
33
Felix Schnyder (1965), U.N. High Commissioner for Refugees, Speech to the Hague Academy of International
Law, The Good Offices and the Functions of the UNHCR in the Social Field, Doc. HCR/RS/32:19
18
the mandate of the HC as defined by his Statute, good-office refugees might also be Statute
refugees and entitled to protection and Statute refugees might also receive good-office material
assistance funds.34
To quote again the HC Schnyder speech in 1965 with regards to the application of PFRSD
Following the exodus of some 200,000 Hungarian refugees from their country, the High
Commissioner’s Office resorted to the concept of prima facie eligibility in order to avert
the paralysis which would have resulted from a strict interpretation of the mandate. The
concept of prima facie eligibility was applied collectively to this group of refugees as a
whole and no longer, as is customary, to isolated individuals. . . . There is nothing to
prevent the High Commissioner’s Office from following the same course again,
whenever the conditions of eligibility appeared to be a priori fulfilled, as was in the facts
of the case.35
Even though the extent of protection offered to refugees recognized through PFRSD has not been
clearly defined till now, it is indicated from the statement of the HC that PFRSD will be used to
group of refugees who seems to fulfill the refugee definition and there is nothing that can prevent
UNHCR from providing similar trend used to protect the Hungarian refugees. The HC has stated
in a different speech that refugees recognized through PFRSD will benefit international
protection if they satisfy the basic requirements to be met by refugees under the mandate. 36 In a
similar subject matter it has also been argued that practically the procedure made it possible for
the UNHCR to assume that at least most of these large new groups of refugees came within the
Statute definition and were therefore entitled to the protection of the Office.37
Gil Loescher , (2003), “The UNHCR and World Politics” under chapter ‘The Good Offices’ and Expansion into
Africa Under Felix Schnyder”A Perilous Path Published toOxford Available Online at
http://www.oxfordscholarship.com/view/10.1093/0199246912.001.0001/acprof-9780199246915-chapter-5#acprof9780199246915-note-245
35
Felix, Schnyder (1965), U.N. High Commissioner for Refugees, Speech to the Hague Academy of International
Law, The Good Offices and the Functions of the UNHCR in the Social Field, Doc. HCR/RS/32:19
36
Opening statement by Mr. Flexi Schnyder, ), U.N. High Commissioner for Refugees to Executive Committee of
the High Commissioner Programme, fourtneeth session , 25 October 1965
37
Holborn, Louise (1975), “Refugees - A Problem of Our Time: The Work of the United Nations High
Commissioner for Refugees”, V II, pp 657- 659
34
19
UNHCR has as well tried to connect this issue with the adoption of new refugee protocol. The
primary objective of lobbying for the adoption of the 1967 Protocol by UNHCR was for the
universalization of international refugee law, including providing protection to new types of
refugees, although it was not successful. However, the Protocol was successful in removing the
time and geographic limitation of the Convention.
2.1.1 Conclusion
Generally speaking a procedure to determine a group of refugee started since the inception of the
League of Nations. Subsequently the issue of refugee became under the mandate of IRO which
was established by General Assembly in 1946.
38
The procedure that was used to determine
refugee status during this period was a group based where an individual has only to prove that he
or she belong to the group and where , individual did not have to substantiate a claim in detail as
is the case of individual RSD. 39 Under this regime the character of the refugee definition started
to obtain individual nature where the individual has to prove personal reasons of persecution.
The individualized nature of the refugee definition became more concrete after the adoption of
the 1951 Refugee Convention, in which the mechanism to determine refugee status established
accordingly acquire similar features. When refugee Mass Influx hit countries especially in third
word, the procedure to determine refugee status that was already in place prove to be incapable,
PFRSD developed along the “good office” mandate of UNHCR. The good office concept in
general has provided the required flexibility to deal with large-scale and complex problems
which were not seen at the inception of international refugee law regime.
2.2 Definitions
PFRSD has not yet attained a standard definition though has been used globally. However,
different explanations and definitions are provided by authors and this section is dedicated to
presenting the general overview of the concept.
38 Ibid, pp 2
39 Jackson Ivor C. Jackson, (1999), The Refugee Concept in Group Situations, Martinus Nijhoff Publishers, pp 104
20
In a refugee law PFRSD has been used in different contexts and by different authors. It has been
referred as tool40, collective eligibility41, recognition42, asylum determination43, and refugee
population44. Literarily it was elaborated as “ PFRSD meant that groups …who looked “on the
face of it” much like the kind of refugees meant to be included within the competence of the
HC”45
A broader definition was presented by UNHCR in 2001, which states as
“A Prima Facie
Refugee Determination means in essence the recognition by a State of mass influx situation of
refugee status on the basis of the readily apparent, objective circumstances in the country of
origin giving rise to exodus”.46
In order to understand these concepts it is necessary at this point to explore the different
components of this definition. Primarily, the numbers of refugees have to correspond to “Mass
Influx Situation”. A UNHCR working group has identified the following elements of Mass
Influx Situation47

Considerable numbers of people arriving over an international border;

A rapid rate of arrival

Inadequate absorption or response capacity in host States, particularly during the

Emergency phase;
40 Rutinwa, B (2002) ‘Prima facie status and refugee protection’, UNHCR New Issues in, Refugee Research,
Working Paper 69, Geneva, UNHCR,
41 Zieck, M., (2006) UNHCR's Worldwide Presence in the Field; A Legal Analysis of , UNHCR's Cooperation
Agreements, The Netherlands, Wolf Legal Publishers Nijmegen
42 United Nations High Commissioner for Refugees (2004) ‘Advance summary findings of the study
commissioned by United Nations High Commissioner for Refugees’, EC/54/SC/CRP.11, 7 June 2004
43 VAN BEEK, I., (2001) ‘Prima facie asylum determination in South Africa: a description’, 14-40 in Handmaker,
J., de la Hunt, L. and Klaaren, J., (eds) Perspectives on refugee protection in South Africa, Pretoria, Lawyers for
Human Rights
44 United Nations High Commissioner for Refugees (2001) Protection of refugees in mass influx situations:
Overall protection framework, Background Paper prepared for the Global Consultation on International Protection
EC/GC/01/4, Geneva, United Nations High Commissioner for Refugees. (the definition was presented during this
meeting)
45
Holborn, Louise (1975), “Refugees - A Problem of Our Time: The Work of the United Nations High
Commissioner for Refugees”, V II, pp 657- 659
46 UNHCR, Protection of Refugees in Mass Influx Situations: Overall Protection Framework, Background Paper
prepared for the Global Consultation on International Protection, EC/GC/01/4, 19 Feb. 2001, para 6 .
47 Ensuring International Protection and Enhancing International Cooperation in Mass Influx Situations, 30th mtg,
UN Doc C/54/SC/CRP.11 (7 June 2004) (‘Protection and Cooperation in Influx Situations’);
21

Individual asylum procedures, where they exist, which are unable to deal with assessment
of such large numbers.
A large scale influx, or ‘mass influx’ as this situation is also called, has been described by the
UNHCR as referring to an exceptional situation in which rapid arrival of large numbers of
asylum-seekers may overwhelm the States capacity, in particular, for the individual
administration of their claims.48
The second component is “the readily apparent, objective circumstances in the country of
origin”. The objective situations in the country of origin that are causing people to flee are like
war, political strife, generalized violence and others. These reasons are considered to be a similar
requirement for different forms of eligibility assessments. Lastly there is an element of
recognition of refugee status by a state. However, this last element is a contested issue among
different refugee commentators and the next section will present the general features of the
procedure.
2.3 Characteristics of PFRSD
In essence it is not clear, if PFRSD is a procedure that can lead to a legal status or simply an
administrative tool without any legal nature. Different arguments have been presented to this
end. The majority of the commentators argued that it has equal status to an individually assessed
refugee. Some on the contrary argued that it does not lead to any legal status.
Ivor Jackson for instance, has characterized prima facie procedure as having the presumptive
nature. 49 In his comprehensive study of PFRSD, he maintained that the individual members of
the group are refugees, who can benefit from international protection unless there are strong
indications that they are not -or are no longer- to be considered as refugees.50 This school of
thought contains strong presumption character that PFRSD contain legal character unless
48 UNHCR Background note: Informal meeting on Temporary Protection, 20 April 1995, para
49 Jackson Ivor C. Jackson, (1999) The Refugee Concept in Group Situations, Martinus Nijhoff Publishers,, pp 1
50 Bonaventure Rutinwa, (2002) ‘Prima Facie Status and Refugee Protection’ Working Paper No 69, United
Nations High Commissioner for Refugees,
22
otherwise proven. He further argued that ‘unless eligibility examinations show that any
individual applicant should not be entitled to the benefits of the Convention’ can only imply a
prima facie presumption of refugee status and he or she is entitled to the benefits of Geneva
Convention.
George Okoth-Obbo51 refers prima facie refugees as a group who has been recognized
temporarily without having to complete status determination formalities.52 According to him, a
refugee status granted on a prima facie basis is presumed to be a refugee and enjoy the rights
until there is a specific decision to the contrary, while according to Ivor53 “unless there are
strong indications that they are no longer considered as refugees”. 54 The presumptive character
seems stronger in the opinion of Ivor. According to George where persons are granted asylum
after a group status determination, they are, strictly speaking, not conclusively determined to be
refugees under any of the above definitions.55
On the other hand, Hyndman and Nylund for instance argued that it is pragmatic and strategic
and does not contain a legal character. They argued that “prima facie refugees” have not been
granted status under any legal instrument and the procedure is not formally within the refugee
regime. Okoth-Obbo similarly argues that PFRSD is ‘only a managerial tool (in as a means to
enable urgent measures to be taken and a device for preliminary decision-making on what is the
separate question of refugee status or until another decision is to be reached.56
One of the unique features of PFRSD is related to the connection it holds with article 1F of the
Geneva Convention. Under this provision a refugee status shall not apply to any person who is
51
UNHCR Director of Beauro for Africa
Okoth-Obbo, G., Thirty Years On: A Legal Review of the 1969 OAU Convention Governing the Specific Aspects
of Refugee problems in Africa, Paper Presented at the Special OAU/UNHCR Meeting of Government and Non52
th
Government Experts Technical Experts on the 30 Anniversary of the 1969 OAU Refugee Convention, para 85.
53
Jackson, The Refugee Concept in Group Situations, Martinus Nijhoff, (1999),
54 Ibid
55 Ibid
56 Salomons, Micheal, (2001) ‘Report of the Three Nations Seminar for National Eligibility Committees of
Zambia, Zimbabwe, and Malawi, 11–12 April, 2001, Siavonga, Zambia’, International Journal of Refugee Law
Availableat
http://www.heinonline.org.ludwig.lub.lu.se/HOL/Page?handle=hein.journals/intjrl13&div=35&?&collection=journa
ls#378
23
believed to have committed crimes enumerated under the sub article. A person is excluded from
international refugee protection if there are ‘serious reasons for considering’ that he or she has
committed a crime against peace, a war crime, a crime against humanity, a serious non-political
crime outside the country of refuge or has been guilty of acts contrary to the purposes and
principles of the United Nations.57 PFRSD does not process if an individual has been involved in
such activities.
Since the procedure to provide status is without taking into detailed
considerations, an easy presumption, of the necessity to conduct future eligibility determination
can be made.
In general the assumption that there are criminals among the refugee population would make the
practical status of all refugees recognized through the procedure difficult and subject to
scrutinize. In such cases individual refugee status determination is required whereby the merits
of a person’s claim are examined in light of the individual circumstances of his or her case.58
Such persons would have been kept outside the scope of prima facie recognition but could seek
determination of their refugee status on an individual basis.59 They may be admitted into asylum
procedures once it has been determined within a reasonable timeframe that they have genuinely
and permanently renounced military activities. The asylum applications of former combatants
who have been admitted into the asylum procedure should be examined in individual refugee
status determination procedures, which should provide for a thorough examination of the
inclusion criteria as well as elements related to the possible application of Article 1F of the 1951
Convention.60 Due to this presumption (indicating the inclusions of criminals), it places prima
facie refugees at a disadvantage position for other benefits. For instance, prima facie refugees
are required to undergo individual RSD before a resettlement process is initiated.61 In this
regards the Global Consultation on International Protection conducted in 2001, recommended the
57 Article 1 (F) of the 1951 Refugee Convention which reads “The provisions of this Convention shall not apply to
any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against
peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make
provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and
principles of the United Nations.”
58
UNHCR Guidelines on the Application in Mass Influx Situations of the Exclusion Clauses of Article 1F
of the 1951 Convention relating to the Status of Refugees.
59
Ibid, para 17
60 Ibid, para 17
61 Albert, Mattew. (2010) “Prima Facie Determination of Refugee Status: An overview and its legal foundation”,
Thesis for Master of Science in Forced Migration at the Refugee Studies Centre, University of Oxford,,
24
procedural aspects to address the problem of excludable cases in the context of group
determination on a prima facie basis to be clarified.62
PFRSD is also cost effective procedure especially when the host State’s RSD apparatus is
overwhelmed.63
In particular, it is much simpler, expeditious, and cost- effective than other
RSD, which in turn allows for proper use of funds and administrations. 64
To sum up, the majority of the commentators have referred PFRSD as to constitute legal status,
while some has contended otherwise. A general state practice particularly in Africa indicates
that the procedure in fact can give rise to certain legal status. Moreover, like most of the
eligibility procedures, it contains individual, group, reliance on objective information features.
Even though it might be difficult to single out unique characteristics, PFRSD is vivid when it
comes to the exclusion of individuals involved in criminal activities and it is cost effective.
2.4 The relationship PFRSD and individual refugee status
PFRSD and individual RSD are both procedures used to assess refugee status determination;
with certain variations. Their main difference lies in the number of refugees involved. Individual
RSD is a process for a case by case65 or to individual asylum seekers while prima facie is
applicable for group or large number of asylum seekers. It is essential to explore the distinction
of the procedures because the rights of refugees depend on the subsequent status acquired.
As discussed PFRSD is initiated usually when the RSD institution of a state is overwhelmed and
the host state is unable to conduct individual determination. The issue whether the nature of
refugees eligible for individual RSD or PFRSD is similar: it is subject to different interpretations.
(See chapter four)
Global Consultations on International Protection, “Protection of Refugees in Mass Influx Situations: Overall
Protection Framework” , EC/GC/01/4, 19 Feb 2001 first meeting note, para 20
63 Ibid, 68
64 Ibid, 68
65 Jean-Francois Durieux, Agnès Hurwitz (2011) “How many is too many?” African and European Legal
Responses to Mass Influxes of Refugee, Germen Book of International Law, págs. 105-159
62
25
The distinction has been explained by High Commissioner Dr. Felix Schnyder in concrete
implementation procedure for General Assembly Resolution 1673 (XVI) as follows
“Although, they both apply to the same category of refugees as those covered by the Statute,
group eligibility and individual eligibility each have their own proper meaning. In the one case
we are confronted with a group of people fleeing the consequences of events in which they have
not actively participated, but of which they fear the consequences for themselves and for those
around them; in the case of individuals each claims to have been the victim of or to have been
personally threatened by, persecution for racial religious or political reasons. In the former case
the Office is confronted with an objective situation, resulting from events which can easily be
verified or at least less easily contested, in the second case the office has to concern itself with
elements of an especially subjective nature which are much harder to deal with and are subject to
much greater caution.”66
Careful reading of the above paragraph would indicate that both procedures are different and use
totally different techniques. It is not clear if both procedures are applicable to the same categories
of refugees, though, a clear distinction is made to personalization of claims in case of individual
RSD. The claims related to PFRSD are generalized and applicable to groups as whole while
under individual RSD, careful examination of individual information is required.
2.5 Conclusion
There is no agreed international definition of PFRSD. However the different interpretations and
definitions provided by different authors provide certain features. Like most of the refugee status
determination, PFRSD has group and individual character. It relies on objective information
about the country of origin. Its unique characteristic lies in the inclusion of criminals that
otherwise should have been excluded under individual refugee status determination. It is also
cost effective in cases where a state RSD institution is overwhelmed to conduct determination.
The procedural distinction between PFRSD and individual RSD is not hard to make. Though, the
66 Full Text of Statements in UNHCR Center for Documentation and Research (CDR), Collection of the Statements
of Dr. Felix Schnyder, UNHCR, See also Jackson Ivor C. Jackson, (1999) The Refugee Concept in Group
Situations, Martinus Nijhoff Publishers, pp 107
26
procedures are applicable to determine refugee status, PFRSD is used in case of Mass Influx
Situation and when the capacity of host state is unable to conduct individual RSD. However, the
distinction on the ultimate result (status) that can be acquired from both procedures is not clear
under international refugee law which will be discuses in chapter four in detail.
27
3. The Legal Foundation of PFRSD
Although, the term “prima facie”, has not been explicitly mentioned in the Geneva Convention
and its protocol, different documents in addition to the convention have been cited as a legal
source. Considering the procedure to be one of the new concepts that developed after the
adoption of the Geneva Convention, neither the Convention nor its Protocol uses the term, or
contain any express provisions regarding the procedure.67 As discussed, it is not clear if the
concept is legal or just simply an administrative procedure that does not lead to any legal status.
Accordingly, this section will examine the legal source of the term (prima facie) in the Geneva
Convention and other relevant instruments.
3.1 Under the Convention on the Status of Refugee
The Geneva Convention and its protocol do not mention the term “prima facie” directly,
however, it has been cited by different commentators as a source through different
interpretations. This section presents the alternative arguments on how to cite the convention as a
legal source.
The convention clearly provides the conditions for individual to attain refugee status under
article 1 (A) by defining as to who to qualify as a refugee, and therefore, it can be considered the
existence of procedure that give rise for refugee status either through individually or on a group
basis.
One possible way of interpreting the refugee law is by the general principle of interpretation as
codifies in Article 31 of the 1969 Vienna Convention on the Law of Treaties (‘Vienna
Convention’). According to article 31 (3) (b) of the ‘Vienna Convention’, “any subsequent
practice in the application of the treaty which establishes the agreement of the parties regarding
its interpretation”, shall be taken into account for interpretation in addition to the context.
67 NOLL, G., (2005) “ Proof, Evidentiary Assessment and Credibility in Asylum Procedures”, Leiden/Boston,
Martinus Nijhoff, Okoth-Obbo, G., ‘Thirty years on: a legal review of the 1969 OAU Convention Governing the
Specific Aspects of Refugee Problems in Africa’, Refugee Survey Quarterly, 20(1): 2001 79-138
28
Subsequent state practice about the application of prima facie refugees can be used to interpret
the Geneva Convention. UNHCR and widespread long-term State practice that is signatory to the
Convention indicates that the Convention does not preclude, and in some respects supports,
PFRSD.
State and UNHCR practice in the use of the Convention’s cessation (Geneva Convention) clause
is further evidence that PFRSD is founded in the Convention.68 Article 1 (C)69 of the Convention
presents conditions in which a person shall cease to be a refugee. The Convention’s cessation
clause equally applies to prima facie refugees, as it is to those who have their refugee status from
another form of RSD.70 It has further been argued that the assumed application of the cessation
clause to prima facie refugees is strong evidence that prima facie refugees attain their status
under the Convention.71
In short, State practice is a permissible source of interpretation under Article 31(3) of the Vienna
Convention. Thus, UNHCR and state practice indicate that the rights of prima facie refugees can
be inferred from the Convention. To add, the Convention was expressed by Paul Weis, the High
Commissioner’s legal adviser, in 1965 as a legal foundation of PFRSD. 72
68 Matthew Albert (2010) “Prima facie determination of refugee status: An overview and its legal foundation”,
Master’s Thesis in Forced Migration at the Refugee Studies Centre, University of Oxford, pp 21
69
This Convention shall cease to apply to any person falling under the terms of section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it, or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear
of persecution; or
(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have
ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; Provided that
this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling
reasons arising out of previous persecution for refusing to avail himself of the protection of the country of
nationality;
70 Davies, S., (2008) “Redundant or essential? How politics shaped the outcome of the 1967 Protocol’, International
Journal of Refugee Law 19(4): 703-729
71 Marjoleine Zieck, (2008) ‘The legal status of Afghan refugees in Pakistan, a story of eight agreements and two
suppressed premises’, International Journal of Refugee Law 20(2): 253-272
72 Mariano-Florentino Cullar ‘Refugee security and the organizational logic of legal mandates’, Berkeley
Electronic Press Legal Series, Working Paper, Paul Weis, the High Commissioner’s legal adviser, engaged in ‘legal
gymnastics’ to use the Convention as the justification for the PFRSD of those fleeing Hungary . Since then, it has
repeatedly been cited as the foundation of PFRSD by UNHCR.
29
3.2 Under the OAU Convention
Like the Geneva Convention, the OAU Convention has been cited as the legal foundation by
some commentaries.73 This is mainly because of the practical considerations which compel to
grant refugees on a group basis.74 It is one of the regional instruments which provide
complementary and broader refugee definition; however, it does not make direct reference to
“prima facie” refugees or to PFRSD like the Geneva Convention.
The OAU definition of a refugee provides protection to a wider group of forced migrants who
would otherwise not qualify for protection under the Geneva Convention. Article 1.2 of the OAU
Convention stipulating the ‘extended’ circumstances under which one can be a refuge
acknowledges the realities in Africa which lead to forced displacement, usually on a massive
scale, and as seen in the Horn of Africa. It is true that PFRSD can be conducted under this
instrument, in fact it has been argued that the convention facilitate prima facie recognition.75
However evidence of the use and operation of the procedure outside countries that have signed
the instrument and the fact that it has been used before the OAU Convention came into operation
indicate that the Convention is not the legal source.76
3.3 UNHCR Handbook
The Handbook is the closest authoritative legal texts that trigger the application of the prima
facie approach, which is implicit in paragraph 44. Sate practice and judicial decisions reveal that
the Handbook could be regarded as reflecting ‘subsequent practice in the application of the
treaty. The United States Supreme Court has determined that, although the Handbook is not
legally binding on United States officials, it nevertheless provides "significant guidance" in
73 O’NEILL, W., (2000) ‘Conflict in West Africa: dealing with exclusion and separation’, International Journal of
Refugee Law 12 (Supplement 1): 171-194
74 Okoth-Obbo, G., (2001) ‘Thirty years on: a legal review of the 1969 OAU Convention Governing the Specific
Aspects of Refugee Problems in Africa’, Refugee Survey Quarterly, 20(1): 2001 79-138
75
Albert. Mattew. (2010) “Prima Facie Determination of Refugee Status: An overview and its legal foundation”,
Thesis for Master of Science in Forced Migration at the Refugee Studies Centre, University of Oxford,
76
Ibid, pp25
30
construing the Protocol and in giving content to the obligations established therein. 77 Hathaway
has also argued that the Handbook could be regarded as reflecting ‘subsequent practice in the
application of the treaty’.78
States generally rely in their practice on a number of other
documents, in particular UNHCR Guidelines on International Protection, which are issued by
UNHCR to complement and update the Handbook. 79
However basically the Handbook does
not carry the weight of international agreement, nor is it directly given the force of international
law.
3.4 EXCOM
Executive Committee of the High Commissioner's Programme (ExCom) currently made up of 87
members and it meets annually to review UNHCR programmes and advice on international
protection.80 As part of its annual duty ExCom also adopts conclusions, notably on international
protection, as well as decisions on a range of administrative, financial and procedural issues.
There are a number of Conclusions adopted with regards to Mass Influx Situation of refugees,
however, none of them has explicitly mentioned the term “prima facie”. These ExCom
recommendations address the issue of Mass Influx Situations of refugees from different
perspectives, but mainly focusing on the principle of non refoluma and the minimum standard of
treatments that needs to be provided, until durable solution is attained. Like the Handbook, the
Excoms do not carry the weight of international agreement; although states practice indicate that
they can be used as guidance.
77 Cardoza-Fonseca, 480 U.S. at 439 n.22; see also, In re S-P-, 21 I. & N. Dec. 486, 492 (BIA 1996) (noting that n
adjudicating asylum cases the BIA must be mindful of “the fundamental humanitarian concerns of asylum law,” and
referencing the UNHCR Handbook).
78 James C. Hathaway, (2005), “The Rights of Refugees under International Law”, Cambridge University Press,
Cambridge,
79 Ibid
80 Executive Committee of the High Commissioner's Programme (ExCom), available at
http://www.unhcr.org/pages/49c3646c83.html
31
3.5 Conclusion
The term “Prima facie Refugee Status Determination” is not directly stated under any of the
Refugee law instruments, although it is possible to trace the source to the Geneva Convention
through interpretations. The OAU Convention has been argued to be the legal foundation of
PFRSD because it provides broader refugee definition and it is convenient to conduct the
procedure.
State and UNHCR practice on the application of the procedure indicate that the right and status
can be relied on the Geneva Convention and OAU Convention. Subsequent state practice on the
application of the Geneva Convention indicates that it can be the legal source. The OAU
Convention has also been cited by many commentators as a legal source although it is subject to
different interpretations. The Handbook and ExComs have been used as a reference and
guidance; however they do not carry the weight of international agreement and thus it has been
argued that it is difficult to be referred as a legal foundation of the procedure.
32
4. The Legal Status and the Rights Attached to PFRSD
4.1 The Legal Status Acquired from PFRSD
As discussed, the legal status acquired from PFRSD is not clear and so is the legal status of
prima facie refugees. The prominent interpretation81, States and UNHCR practice indicate that
the use of PFRSD can result to a status. In addition, domestic instrument that uses the term
“prima facie” in relation to RSD also refer to “prima facie” as a refugee status.82
The
presumption concept argues that they are presumed to be refugees within the meaning of the
relevant refugee instruments, unless and otherwise dislodged to the contrary.
83
As a logical
consequence of this theory, they are entitled to enjoy all the rights of refugees under the Geneva
Convention and any other applicable instruments, unless proven to the contrary. 84
The closest authoritative legal text that triggers the application of PFRSD is implicit in paragraph
44 of the UNHCR Handbook. However a careful reading of the paragraph indicates that it is
directed to mean only to a procedure without yielding to any status. The paragraph reads “While
refugee status must normally be determined on an individual basis, situations have also arisen in
which entire groups have been under circumstances indicating that members of the group could
be considered individually as refugees. In such situations, the need to provide assistance is
extremely urgent and it may not be possible for purely practical reasons to carry out an
individual determination of refugee status for each member of the group. Recourse has therefore
been held to the so-called ‘group determination’ of refugee status, whereby each member of the
group is regarded prima facie i.e. in the absence of evidence to the contrary as a refugee”85
81 Zieck, Goodwin-Gill and McAdam, Durieux and Hurwitz,Van Beek, have argued that PFRSD has presumed refugee
status.
82 MattewAlbert, (2010),“Governance and Prima Facie Refugee Status Determination: Clarifying the Boundaries of
Temporary Protection, Group Determination, and Mass Influx”, Refugee Survey Quarterly, para 2.4
83 Rutinwa, B (2002) ‘Prima facie status and refugee protection’, UNHCR New Issues in, Refugee Research,
Working Paper 69, Geneva, UNHCR, pp 1 [online] available at http://www.refworld.org/pdfid/4ff3f8812.pdf,
84 Ibid
85 United Nation High Commissioner for Refugees (1979) Handbook on Procedures and criteria for determining
refugee status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva,
UNHCR, (UNHCR Handbook), Para. 44
33
If we look at the last sentence, it could, but does not, say that each member of the group is prima
facie a refugee. It has been argued that the present wording thereby suggests that PFRSD does
not result in the person being afforded refugee status in the Convention sense,86 and that there is
a deliberate exclusion of using prima facie as a status.87 Therefore, an ambiguity of status exists
even with the closest authoritative text.
George Okoth-Obbo similarly argued that they are refugees on provisional basis without the
requirement to complete status determination formalities, and are not considered conclusive as
such under any of the definitions. 88 It essentially consists of a device for preliminary decisionmaking on what is the separate question of refugee status. 89 In other words, since the decision
maker has to make an initial decision without requiring the individual to any kind of evidence, he
or she attains the status on a provisional basis.
The official stand of UNHCR as an architect of the term seems to be vital at this point. As
indicated above none of the ExComm issued by UNHCR explicitly mention “prima facie”.
However, the issue of Mass Influx Situations of refugees (which includes prima facie refugees)
has been addressed from different perspectives; mainly focusing on the principle of non refoluma
and the minimum standard of treatments until durable solutions is attained.
One of the earliest instruments to specifically address the question of asylum procedures is
ExCom Conclusion No 8 on Determination of Refugee Status (1977), however, this conclusion
was essentially aimed at individual applications for asylum and not group determination in
situations of mass influx.
The ExCom recommendation applicable to large scale influx was adopted in 1981, ExCom No
22. The Conclusion makes provisions for; inter alia, admission and an obligation to uphold the
Albert, Mattew (2010) “Governance and Prima Facie Refugee Status Determination: Clarifying the Boundaries of
Temporary Protection, Group Determination, and Mass Influx”, Refugee Survey Quarterly,
87
Albert. Mattew. (2010) “Prima Facie Determination of Refugee Status: An overview and its legal foundation”,
Thesis for Master of Science in Forced Migration at the Refugee Studies Centre, University of Oxford,
88 Okoth-Obbo, G., (2001), “Thirty years on: a legal review of the 1969 OAU Convention Governing the Specific Aspects
of Refugee Problems in Africa’, Refugee Survey Quarterly, pp 119 [online] available at
http://rsq.oxfordjournals.org/content/20/1/79.full.pdf
89 Ibid ,pp 119
86
34
principle of non-refoulement. Unlike Conclusion No 8, it is silent on procedural standards
including on what procedures should be followed in granting group status and how can one
exclude criminal and other elements that are not deserving of international protection. 90 On the
other hand, the ExCom has set the minimum standard of treatment in cases of Mass Influx
Situation pending arrangement for a durable solution.91 It does not make a direct reference to
prima facie refugees, however, the Global Consultations on International Protection conducted in
2001 made reference as such.92 Global Consultations was launched by UNHCR in 2001 to
coincide with 50th anniversary of the Convention, with the stated objective of revitalizing the
international regime of refugee protection.93 In paragraph 8 of the meeting note on Global
Consultations states “Given the very nature of mass influx, it may be difficult or impossible to
provide immediately the full standards of treatment foreseen under the 1951 Convention. In its
Conclusion No. 22 adopted in 1981, the Executive Committee defined minimum standards of
90 Executive Committee of United Nations High Commissioner for Refugees, “Conclusions Adopted by the Executive
Committee on the International Protection of Refugees 1975 – 2004 (Conclusion No. 1 – 101)”, Geneva, UNHCR, 2004,
No. 22.
91
The minimum standard of treatments are : (a) they should not be penalized or exposed to any unfavorable treatment
solely on the ground that their presence in the country is considered unlawful; they should not be subjected to restrictions
on their movements other than those which are necessary in the interest of public health and public order; (b) they should
enjoy the fundamental civil rights internationally recognized, in particular those set out in the Universal Declaration of
Human Rights; (c) they should receive all necessary assistance and be provided with the basic necessities of life including
food, shelter and basic sanitary and health facilities; in this respect the international community should conform with the
principles of international solidarity and burden-sharing; (d) they should be treated as persons whose tragic plight requires
special understanding and sympathy. They should not be subjected to cruel, inhuman or degrading treatment; (e) there
should be no discrimination on the grounds of race, religion, political opinion, nationality, country of origin or physical
incapacity; (f) they are to be considered as persons before the law, enjoying free access to courts of law and other
competent administrative authorities; (g) the location of asylum seekers should be determined by their safety and wellbeing as well as by the security needs of the receiving State. Asylum seekers should, as far as possible, be located at a
reasonable distance from the frontier of their country of origin. They should not become involved in subversive activities
against their country of origin or any other State; (h) family unity should be respected; (i) all possible assistance should be
given for the tracing of relatives; (j) adequate provision should be made for the protection of minors and unaccompanied
children; (k) the sending and receiving of mail should be allowed; (l) material assistance from friends or relatives should
be permitted; (m) appropriate arrangements should be made, where possible, for the registration of births, deaths and
marriages; (n) they should be granted all the necessary facilities to enable them to obtain a satisfactory durable solution;
(o) they should be permitted to transfer assets which they have brought into a territory to the country where the durable
solution is obtained; and (p) all steps should be taken to facilitate voluntary repatriation.
92 Global Consultations on International Protection, “Protection of Refugees in Mass Influx Situations: Overall
Protection Framework” , EC/GC/01/4, 19 Feb 2001 first meeting note . paragraph 6 of the note defines PFRSD and
latter connects it to Mass Influx Situation, the specific paragraph states ” Group determination on a prima facie basis
means in essence the recognition by a State of refugee status on the basis of the readily apparent, objective
circumstances in the country of origin giving rise to the exodus. Its purpose is to ensure admission to safety,
protection from refoulement and basic humanitarian treatment to those patently in need of it.”
93 Jean-François Durieux and Jane McAdam, (2001)“Non-Refoulement through Time: The Case for a Derogation
Clause to the Refugee Convention in Mass Influx Emergencies “International Journal of Refugee Law, Volume
[online] available at http://ijrl.oxfordjournals.org/content/16/1/4.abstract
35
immediate treatment in situations of large-scale influx. For UNHCR as well as for affected
States, this Conclusion remains an important yardstick against which to measure such treatment
in a mass influx of refugees. It is important to note, however, that the Conclusion was never
intended as a substitute for standards of protection under the 1951 Convention.”94
From close reading of the paragraph the status, cannot easily be deducted. On one hand, the
standard offered does not seem as the same standard offered in the Geneva Convention. On the
other hand, it clearly demonstrates that the standard should not replace the protection of the
Convention. The protection offered was limited to ensuring admission to safety, protection from
refoulement and basic humanitarian treatment to those patently in need of it.95
The meeting failed to come into conclusion on how the full application of the Convention could
be brought to Mass Influx Situation.96 In its concluding remarks, the meeting has admitted the
need to develop further the tools available to ensure protection in situations of mass influx and to
maximize their potential while anchoring them firmly in the international refugee protection
regime, with the Convention.97Thus it is self-evidence that the full application of the Convention
has not fully developed and needs further clarification.98 The general spirit of the ExCom and the
note99 indicate that due to the difficulty of accommodating large numbers of refugees, states are
expected to fulfill only the minimum standard set by the ExCom.
On a different note, when the issue of International Protection is addressed to UN General
Assembly, UNHCR has addressed the issue as follows “The OAU Refugee Convention, which
was adopted 25 years ago and has now been in force for 20 years, in many respects provides a
Global Consultations on International Protection, “Protection of Refugees in Mass Influx Situations: Overall
Protection Framework” , EC/GC/01/4, 19 Feb 2001 first meeting note, para 8
95
Ibid para 6
96
Global Consultation on International Protection “ Report of the First Meeting in the Third Track” UN Doc
EC/GC/01/7
97
Global Consultations on International Protection, “Protection of Refugees in Mass Influx Situations: Overall
Protection Framework” , EC/GC/01/4, 19 Feb 2001 first meeting note
98
See similar argument by, Jean-François Durieux and Jane McAdam, (2001)“Non-Refoulement through Time:
The Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies “International Journal of
Refugee Law, pp 6
99
Global Consultations on International Protection, “Protection of Refugees in Mass Influx Situations: Overall
Protection Framework” , EC/GC/01/4, 19 Feb 2001 first meeting note
94
36
model for the provision of international protection to all refugees, whether they are fleeing armed
conflict, civil strife, persecution, or, as is often the case, a combination of these. The use of
objective criteria facilitates the recognition of refugee status on a prima facie basis in the case of
large refugee flows, a practice that is not inconsistent in theory with the 1951 Convention, but
which is at variance with the highly individualized manner in which the latter instrument has
normally been applied by States Parties.”
100
Here, PFRSD is addressed through the OAU
Convention and in principle; it is in line with the Geneva Convention. However, this is by itself
vague in that, it does not clarify the status of prima facie refugees in relation to the Geneva
Convention.
UNHCR has explicitly addressed their rights in 2001 in a document (Handbook) called "Guide to
International Refugee Law”. The document gives permission for a states to use “prima facie” or
group status determination procedure, when the circumstances under which large numbers of
people flee and there is an indication that members of the group could be considered individually
as refugees.
101
It allows states to provide prima facie refugees only as a basic protection and
assistance to those in need, pending arrangements for a durable solution, without initially
addressing the question of their status in connection with the Refugee Convention and Protocol.
4.2 Conclusion
From above different interpretations and argument it is evident that the status of PFRSD is
blurred. The direct source, paragraph 44 of the Handbook does not indicate that it can give rise to
a refugee status. Some commentators support this argument by stating that PFRSD is only an
initial decision making that might not lead to any status, while the vast majority of commentators
argues that it give rise to presumed refugee status. It is beyond the scope of this paper to explore
deeper and come to a single conclusion, however, evident is its ambiguity. The stand of
100 UN General Assembly, Note on International Protection, 7 September 1994, A/AC.96/830, available at:
http://www.refworld.org/docid/3f0a935f2.html [accessed 8 September 2013]
101 Kate Jastram and Ms. Marilyn Achiron, “Refugee Protection : A Guide to International Refugee Law” UNHCR
Handbook prepared by Officers of the Inter-Parliamentary Union's Committee on Parliamentary, Juridical and
Human Rights Questions and of the IPU Committee to Promote Respect for International Humanitarian Law: Ms.
Beth Mugo (Kenya), Mr. Jim McKiernan(Australia),and Mr.RicardoVasquez(Argentina), pp 54
37
UNHCR deemed unclear. The procedure was invented for solving emergency refugee situations
and refugees recognized through the procedure are guaranteed minimum standard of rights that
does not equally put them at equal level with refugees who fall under the Geneva Convention.
Oddly enough till this date, UNHCR failed to clarify the status and rights that can be obtained
from the procedure in connection with International Refugee Law. It is true that the minimum
standard of treatment offers certain guidance, however, it does not explain if prima facie refugees
have equal status as conventional refugees. Despite this millions of refugees are recognized
through PFRSD and regarded to have certain rights. State practice in Africa, which will be
discussed below, especially indicates that prima facie refugees are provided limited basic rights,
in addition to the principle of non- refolment. Therefore it is relevant at this point to explore the
nature of these rights.
4.3 Rights Attached
States in third world countries, particularly in Africa, have rarely contested the eligibility of
refugee status of those arriving into their borders; however, the protection provided is far from
being in line with the duties set by the Refugee Convention.102 Consequently prima facie
refugees especially in camps have been detained, socially marginalized, left physically at risk or
effectively denied their ability to meet even their most basic rights ( for more see chapter 5) . In
the absence of clear international legal status (as discussed in chapter 4), and unfair standards of
treatments: it is important to explore the rights that can be attached based on interpretation of
Refugee Conventions.
4.3.1 Under the Geneva Convention
The Geneva Convention does not acknowledge the rights of prima facie refugees directly,
however refugees can benefit from certain Conventional rights in the absence of formal
recognition through different interpretations. Under normal circumstances and procedures, the
Jean-François Durieux and Jane McAdam (2001) “Non-Refoulement through Time: The Case for a Derogation
Clause to the Refugee Convention in Mass Influx Emergencies “ International Journal of Refugee Law, Volume 16
pp 4- 24.
102
38
rights of the Geneva Convention can be obtained after an eligibility assessment for refugee
status. Since, legal ambiguity revolving around the status of prima facie refugees cannot be
invoked as a justification for denying rights; the present paper as an alternative, aims at exploring
rights that would otherwise be applicable under the general principles of refugee laws and their
interpretations.
As a fundamental principle of refugee law, the acquisition of rights under international refugee
law is not based on formal status recognition by a state or agency, but rather follows simply and
automatically from the fact that substantive satisfaction of the refugee definition.103 On similar
subject matter UNHCR has confirmed this principle by stating that “A person is a refugee within
the meaning of the Geneva Convention as soon as he or she fulfills the criteria contained in the
definition. This would necessarily occur prior to the time at which his or her refugee status is
formally determined. Recognition of a status does not therefore make him or her refugee, but
declares them to be one. 104
Similarly, Hathway argued that refugees within the territory of asylum states are entitled to rights
of refugees based on a principle named “attachment to the asylum state”.
105
According to this,
refugees will have the right to claim conventional rights just only by invoking their relationship
with the asylum state. Automatic claim of Conventional rights can be made as soon as the
physical presence in the asylum state is confirmed. 106 In short, the physical presence of prima
facie refugees in the territory of the host state, in principle, can guarantee the conventional rights,
even in the absence of formal recognition by the host state.
103 James C. Hathaway, (2005)“The Rights of Refugees under International Law”, Cambridge University Press,
Cambridge , pp 11
104 UNHCR Handbook on procedures and Criteria for Determining Refugee Status (1979, re-edited 1992 para, 28
105 James C. Hathaway, “The Rights of Refugees under International Law”, Cambridge University Press,
Cambridge, 2005, pp 110
106 Ibid, pp11,
According to Hathaway refugees will have the right to claim conventional rights just only by invoking their
relationship with the asylum state. For instance, when lawful presence of refugee within a state territory is proven,
certain rights like, the rights to freedom of or religion, to receive identity papers, to freedom from penalization for
illegal entry, and to be subject to only necessary and justifiable constraints on freedom of movements, are
guaranteed. Prima facie refugee can claim these rights because they can easily prove that they are lawfully present in
the territory of state.
39
During the Global Consultation meeting held at Geneva in 2001, states recognized the Geneva
Convention relevance to mass influx situations and demonstrate a strong opinion that refugees
recognized on prima facie basis should be entitled to the same rights as refugees recognized
under the individual refugee status determination.107 The meeting witnessed that the international
community should work on the centrality, full and inclusive application of the Geneva
Convention in mass influx situation.108
4.3.2 Under the OAU Convention
Under the OAU Convention, it is not crystal clear, if prima facie refugees who fall under section
I (2) of the Convention are entitled to the same standards of treatment as those who fall under the
Geneva Convention; although its applicability has not been contested. In fact despite the absence
of explicit term “prima facie”, there is a general tendency of assimilating prima facie refugees
only to the broader OAU refugee definition, due to the nature of the definition.
Historically, the new groups of refugees (which include prima facie refugees) were outside the
scope of the Geneva Convention. At a later stage the OAU Convention was adopted as a
regional instrument and it offers legal protection in response to the growing refugee problems in
African.109 From this point of view it can be argued that prima facie refugees who fall under the
OAU broader definition are outside the scope of the Geneva Convention.
As discussed with regards to the broadening of UNHCR mandate, successive General Assembly
resolutions have had the effect of extending the High Commissioner's competence to refugees
fleeing armed conflict. The General Assembly has regularly called upon the High Commissioner
"to continue his assistance and protection activities in favor of refugees within his mandate as
well as for those to whom he extends his good offices or is called upon to assist in accordance
107 Global Consultation on International Protection “Mechanism of International Cooperation to share
responsibilities and Burdens in Mass Influx Situation “ UN DOC EC/GC/01/07 Revitalizing the Refugee Protection
Regime: The Road Ahead as the 1951 Convention turns 50", Statement by Ms. Erika Faller, Director department of
international protection to the 51st session of EXCOM, Geneva.
108
Ibid
109 “Persons covered by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and
by the Cartagena Declaration on Refugees (Submitted by the African Group and the Latin American Group”
International Protection (SCIP), 6 April 1992, UNHCR website available @http://www.unhcr.org/3ae68cd214.html
40
with relevant resolutions of the General Assembly".110 Accordingly UNHCR has been providing
international protection to refugees who flee armed conflict as well as those fleeing
persecution.111
The terminology used with this extended mandate112 was neither clear nor consistent. In order to
avoid the confusion and ambiguities and to convey clearly to the lay person the reality of coerced
flight from one's country, UNHCR has in recent years adopted the usage of regional instruments
such as the OAU Refugee Convention.113 To this effect the GA adopted the recommendation of
the Arusha Conference114 and recommended all United Nations organs to apply the OAU
Convention.115 In general it provides protection to all refugees, whether they are fleeing armed
conflict, civil strife, persecution, or, as is often the case, a combination of these. The objective
criteria used facilitates the recognition of refugee status on a prima facie basis in the case of large
refugee flows, a practice that is not inconsistent in theory with the Geneva Convention, but
which is at variance with the highly individualized manner in which the latter instrument has
normally been applied by States Parties.116 With this UNHCR started to use the Convention to
provide protection to refugees who initially fall outside the scope of the Geneva Convention.
However, it is quite controversial if the provisions of the Geneva Convention are applicable to
prima facie refugees who fall under the OAU broader definition. The nature of the OAU
Convention is considered to form part of complementary instrument to the Geneva Convention.
117
When it was drafted, the socio- economic rights were dropped as a result of the “the concern
110
General Assembly resolution. 3143 (XXVIII), 14 Dec.1973. Other resolutions refer, e.g., to "refugees for whom
[the High Commissioner] lends his good offices" (GA Res.1673 (XVI), 18 Dec. 1961; "refugees who are of [the
High Commissioner's] concern" (GA res. 2294 (XXII), 11 Dec 1967;
111
UN General Assembly, Note on International Protection, 7 September 1994, A/AC.96/830, available at:
http://www.refworld.org/docid/3f0a935f2.html [accessed 8 September 2013]
112
For instance the Resolution to the Hungarian (1006) states '…to continue his efforts to effect solutions in
accordance with the Statute of his Office and the programme of the United Nations Refugee Fund…”Resolution no
1286 for Algerians “ …to continue his action on behalf of the refugees in Tunisia …and Morocco”
113
Ibid
114
The International Conference on the Situation of Refugees in Africa which took for its theme the notion that "the
granting of asylum is a peaceful and humanitarian act"-was held, at the invitation of the Tanzanian Government, in
the international conference center at Arusha (Tanzania) from 7 to 17 May 1979.
115
GA res. 34/61 on the Situation of Refugees in Africa (29 Nov. 1979), para. 1.
116
UN General Assembly, Note on International Protection, 7 September 1994, A/AC.96/830, available at:
http://www.refworld.org/docid/3f0a935f2.html [accessed 8 September 2013]
117 Sub-Committee of the Whole on International Protection (SCIP)- Persons covered by the OAU Convention
Governing the Specific Aspects of Refugee Problems in Africa and by the Cartagena Declaration on Refugees
41
to ensure full harmony with the principles of the Geneva Convention. 118 Moreover, the preamble
of the Convention refers the Geneva Convention as forming its integral part and; its main desire
is to establish a common standard of treatment.119
This was confirmed by the Arusha
Conference which recognized the definitions of the term ‘refugee’ contained in Article I,
paragraphs 1 and 2 of the 1969 OAU Refugee Convention as the basis for determining refugee
status in Africa and stressed “the essential need for ensuring that African refugees are identified
as such, so as to enable them to invoke the rights established for their benefit in the 1951
Refugee Convention and the 1967 Refugee Protocol and the 1969 OAU Refugee Convention”.120
It can be argued that this establishes the link between prima facie refugees who fall under article
I (2) of the OAU Convention to the rights enshrined under the Geneva Convention.
Moreover, as history and state practice indicate, the use of PFRSD is not limited to refugees who
fulfill the extended refugee definition. PFRSD or group eligibility was used in cases of
Hungarian refugees although it was believed that they fulfill the criteria under the Geneva
Convention.121 African state practice on the use of PFRSD indicates that both procedures (RSD
and PFRSD) are used interchangeably with individuals who fall under the Geneva Convention
and the OAU Convention. Some states apply Article 1A (2) of the Geneva Convention and then
move to Article I (2) of the OAU Convention only if the individual does not qualify under the
1951 Convention. While other states simply apply the OAU refugee definition, regardless of the
country of origin information. (See Chapter 5)
(Submitted by the African Group and the Latin American Group) EC/1992/SCP/CRP.6 1992 ,available at
http://www.unhcr.org/3ae68cd214.html
118
Ivor Jackson, op cit., note 19 p. 182. At the time of elaborating the Convention, a central pre-occupation in the
refugee reality in Africa was the quality of life for refugees, or, rather, their dismal state. This was to remain an
increasingly preoccupying problem and today the Continent is locked in a bitter row with the international
community on the issue. In fact, one of the drafts in the evolution of the Convention had quite elaborate provisions
on, among others, wage-earning employment, self-employment and the liberal professions, which was later dropped.
119
The preamble reads “Recognizing that the United Nations Convention of 28 July 1951, as modified by the
Protocol of 31 January 1967, constitutes the basic and universal instrument OAU relating to the status of refugees
and reflects the deep concern of States for refugees and their desire to establish common standards for their
treatment,
120
Recommendations of the Arusha Conference on the African Refugee Problem, Adopted at the Arusha
Conference on the African Refugee Problem, 7-17 May 1979, Arusha, Tanzania, para 2. Which reads “Stresses the
essential need for ensuring that African refugees are identified as such, so as to enable them to invoke the rights
established for their benefit in the 1951 Refugee Convention and the 1967 Refugee Protocol and the 1969 OAU
Refugee Convention;”
121
Felix Schnyder (1965), U.N. High Commissioner for Refugees, Speech to the Hague Academy of International
Law, The Good Offices and the Functions of the UNHCR in the Social Field, Doc. HCR/RS/32:19
42
However, this does not necessarily mean that all the rights under both Conventions are similar.
The precondition of certain rights in OAU is different from Geneva Convention.
It is not the
intention of this paper to go deeper into all the rights stated under the convention, but to show the
some of the differences. For instance the conditions set to issue travel documents to refugees
lawfully staying in a territory of a state party, is different in the Geneva Convention and OAU
Convention.122 The limitation for Geneva Convention under article 28 is "compelling reasons of
national security or public order", while under article 6 of the OAU Convention, it is subject to
“any form of subversive activities by refugees.”
123
Most of the socio economic rights of the
Geneva Convention (from Article 17-24), are not addressed under the OAU Conventions. Since
the OAU Convention has a complimentary nature, as mentioned earlier, these rights in principle
can be applied to refugees falling under the broader definition.
4.4 Conclusion
Historically, the concept of PFRSD started as an emergency strategy and to solve the emergency
nature of large influx situations. The legal status that can be obtained from the procedure has
never been officially addressed. Different arguments have developed to clarify the status. The
majority of the commentators follows the presumption theory and argues that PFRSD can give
rise to a refugee status, while others contended to the contrary. In the absence of clear legal
status this section presented the rights that can be attached to PFRSD under the Geneva
Convention, using the general principle of refugee law. Similarly the rights of prima facie
refugees who fall under the OAU broader definition are not clear. Historically the concept
developed partly to refugees outside the scope of the Geneva Convention, while recent refugee
law developments indicate otherwise. Since the OAU Convention is regarded to complement the
Geneva Convention, refugees who fall under the OAU broader definition might have right to the
Geneva Convention. However this statement does not have clear stand under international law.
UNHCR has tried to clarify the issue during the Global Consultations, although it failed to reach
122 Emmanuel Opoku AwukuSource (1995),“ Refugee Movements in Africa and the Oau Convention on
Refugees” Journal of African Law, Vol. 39, No. pp. 79-86
123 In the OAU Convention, Article 6 the right to have travel document is subject to Article 3, in which is refugee is
required to abstain from any subversive activities against any Member State of the OAU.
43
a concrete solution. With this uncertainty in mind the next section examines how states
especially in Africa treat prima facie refugees.
44
5. The Practical Aspects of the Standard of Treatment of Prima
Facie Refugees
5.1 General African State Practice
The standard of treatment offered in most African states is not in accordance with the refugee
and Human Right Conventions.
The picture of a deep-seated crisis with asylum policies,
practices and even laws is overpowering.124 Even in those cases where admission itself is not
officially refused, the treatment of asylum-seekers and refugees varies considerably.
125
The
practice indicates that it is administered through an ad hoc mechanism lacking cohesion and
predictability rather than an international legal framework. The problem gets more complicated
and blurred when the procedure to determine refugee status come into play.
Most of the displaced refugees in the world, which includes prima facie refugees, are situated in
Africa.
126
Developed states have a well-established structure of status determinations, while
states in Africa are obliged to use group eligibility or prima facie determination, a procedure
which lacks well established structure and legal clarity.
One of the main characteristics to many protracted refugee situations in Africa is the inability of
exiled populations to avail themselves of basic human rights - including those rights to which
refugees are entitled under the Geneva Convention and other international instruments. 127 In past
African State practice, refugees arriving in mass influx were able to enjoy not only the minimum
rights, but also other rights such as housing, education and engagement in gainful economic
Okoth-Obbo, G., (2001) ‘Thirty years on: a legal review of the 1969 OAU Convention Governing the Specific
Aspects of Refugee Problems in Africa’, Refugee Survey Quarterly, 20(1): 79-138
125
James C. Hathaway, (2005) “The Rights of Refugees under International Law”, Cambridge University Press,
Cambridge, pp 192
126 Crisp, J. (2003) “No Solutions in Sight: the Problem of Protracted Refugee Situations in Africa” UNHCR New
issues in Refugee,
Research Working Paper no. 75 (Geneva Jan 2003), pp 1-36 Available at
http://www.unhcr.org/3e2d66c34.html
127 Ibid
124
45
activities.128 In recent years, however the attitude of most states altered for various reasons. The
practice revealed common restrictive conditioned placed on refugees including limited physical
security, freedom of movement, civil and political rights, legal rights and lack of status, freedom
of choice, and or ability to engage in any income generating opportunity.129
As a matter of practicality, some states cannot be expected to provide an equal level of protection
to hundred thousands of refugees who suddenly appear in the borders. There is increasing
recognition that states’ responsibilities towards refugees can be differentiated according to the
scale and timing of the refugee movements states are confronted with.
130
When faced with a
sudden and a mass influx of refugees, some states may be not just unwilling, but simply unable
to comply with their Convention obligations. 131 As a result, while states do admit large numbers
of refugees, they demand in exchange a “de facto suspension of all but the most immediate and
compelling protections provided by the Convention.” 132
This especially, is taking place on a
continent on which all refugees hosting states are party to the Geneva Convention, the 1969
OAU Convention, and a number of human right treaties, which has contributed to undermining
the importance of the Conventions.
In light of this, the standard of treatment or protection accorded to prima facie refugees even
become more complicated, in the absence of both clear legal status and clear guidelines on what
they are entitled. Conventional rights would only be automatic, if they are presumed to be
refugees within the definitions of the Geneva Convention. State practice in this regard especially
in Africa varies considerably. This section will discuss the practical aspects of treatments
offered in Africa, specifically Kenya; which is selected as a case study. The general legal
framework and practice of refugees recognized through the procedure in the country will be
addressed.
128 Rutinwa, B (2002) ‘Prima facie status and refugee protection’, UNHCR New Issues in, Refugee Research,
Working Paper 69, Geneva, UNHCR, pp 3
129 Ibid
130 Ibid
131 Ibid
132 Ibid
46
5. 2 Prima Facie Refugees in Kenya
5.2.1 Introduction
The government of Kenya policy to restrict refugees in camps has violated rights of refugees
guaranteed under the Geneva and Human Right Conventions. It has placed an “encampment
policy” whereby refugees are obliged to reside in camps to qualify for assistance, and those
found outside are classified as illegal aliens and subject to punishment including deportation.133
Most importantly the treatment offered contradicts the human right obligations of the
government. In light of these restrictions, the rights of refugees in camps are grossly violated
and this section is dedicated to the general description of refugee policy in Kenya in connection
with the standard of treatment offered in Dadaab camp.
Kenya is in the unenviable position of sharing borders with no fewer than five other nations, all
of which - with perhaps the exception of Tanzania - have generated sufficient internal conflict to
produce asylum seekers in Kenya.134 During the peak of refugee displacement in 1992, there
were some 420,000 refugees in Kenya, which most of them came as a result of internal
disturbances and ethnic conflicts in neighboring Somalia, Ethiopia, and Sudan.135
Consequently it is a country with a large number of refugees, and established one of the biggest
refugee camps in the world, Dadaab. Kenya is currently hosting around 1,000,000 population of
concern.136, Only in Dadaab there are around 673,800137 UNHCR assisted Refugees and Asylum
seekers, most of whom arrived during the first half of the 1990s. 138 There are four refugee
camps: the three Dadaab camps in the North-Eastern Province (Dagahaley, Hagadera, and Ifo)
J. Milner “Refugees, the State and the Politics of Asylum in Africa” Jan Zielonka Fellow of St Antony’s
College, Oxford (2004– ), pp 84,
134
Hyndman, J. and Nylund, B., (1998) “UNHCR and the status of prima facie refugees in Kenya”, International
Journal of Refugee Law,
135
US Committee for Refugees, World Refugee Survey, 1996, (Washington D.e., 1996).
136 UN High Commissioner for Refugees, Analysis of Refugee Protection Capacity - Kenya, April 2005, cat:
http://www.refworld.org/docid/472896f70.html [accessed 21 May 2013], Population of concern includes Refugees,
Asylum Seekers, Internally Displaced Persons (IDPs), Stateless Persons
137 UNHCR country operations profile – Kenya Working environment (2013) available at
http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e483a16&submit=GO#KENDA
138 Ibid
133
47
and the Kakuma camp located in the Turkana district in the northwest of the country.
139
The
refugee population of Dadaab reached 450,000 by the end of 2012, further stretching
infrastructure and services far beyond the original intended capacity of the camp. 140
Kenya’s asylum policy was profoundly affected with the arrival of over 400,000 refugees from
Somalia in 1991 and 1992. Claiming that the sheer number of new arrivals had caused the
collapse of Kenya’s previously open asylum policy, the government ceased to conduct individual
status determination interviews for new asylum seekers.
141
Refugee affairs were transferred
almost exclusively to UNHCR, who became responsible for the establishment and running of
camps in government-designated areas. At the same time, it placed significant restrictions on the
quality of asylum it extended to refugees. The Government’s emerging strategy was clear: to try
to contain the refugees in the camps, offer temporary protection, delegate dealing with the
refugees to UNHCR, and contain them in remote areas of the country.142
Prior to 1993, the Government had an individual refugee determination process, and those who
were found to be Convention refugees were registered, although, following the massive influx of
refugees from Sudan and Somalia from 1993 onwards, the responsibility for registration and
status determination has shifted to UNHCR143. Due to declining resources and increasing refugee
numbers, the government could no longer accommodate asylum seekers on an individual basis.
This was the period where PFRSD was introduced. After 1991, asylum seekers from Ethiopia,
Somalia and Sudan were considered for refugee status on a group basis, whereas other
nationalities were left pending as asylum seekers without any legal status being granted to
139 Ibid
140 The Humanitarian Accountability Partnership International Maison Internationale de l’Environnement “The
2011 Humanitarian Accountability Report” Genève Switzerland, 2011
Available at http://www.hapinternational.org/pool/files/2011humanitarian-accountability-report.pdf
141 Ibid, pp
142 Anna Lindley (2011) “Between a Protracted and a Crisis Situation: Policy Response to Somali Refugees in
Kenya” Refugee Survey Quarterly Vol. 30 Issue 4, p14 available At
http://connection.ebscohost.com/c/articles/69709060/between-protracted-crisis-situation-policy-responses-somalirefugees-kenya
143 Moret, Joëlle, (2006) “The Path of Somali Refugees into Exile A Comparative Analysis of Secondary
Movements and Policy Responses” Swiss Forum for Migration and Population Studies, University of Neuchâtel,
Switzerlandpp 38
48
them.144 Currently around 425,000 Somalis were recognized on a prima facie basis comprising
96% of Dadaab's refugee population.145
5.2.3 General Frame Work of Refugee Law of Kenya
Kenya is signatory to a number of international legal instruments covering both international
refugee law and international human rights law. This includes to the Geneva Convention, its
1967 Protocol and the OAU Convention. Until 2006, there was no national legislation for
refugees, but Kenya has over the years registered hundreds of thousands of Somalis as prima
facie refugees, on a group basis, offering temporary protection in camps. 146 Since its enactment
in 2007, Kenya’s refugees have been regulated by the Refugees Act 2006. The provisions of the
Act is closely modeled on those of the international and regional instruments, with necessary
exceptions as necessitated by the circumstances of Kenya,147 and its implications on the ground,
will be discussed in detail below.
5. 2.3.1 Definition of Refugees
The Act provides two types refugee definitions: statutory refugees and prima facie refugees.
According to article 3 (1), the definition from the Geneva Convention with the addition of sex as
a ground for persecution has been adopted.148 It also provides specific definition for prima facie
refugees under Article 3 (2), which states “A person shall be a prima facie refugees for purposes
of this Act if such person owing to external aggression, occupation, foreign domination or events
144 Hyndman, J. and Nylund, B., (1998) “UNHCR and the status of prima facie refugees in Kenya”, International
Journal of Refugee Law, [online] available at http://ijrl.oxfordjournals.org/content/10/1-2/21.full.pdf
145 Email Communication with UNHCR Dadaab Office
146 UN High Commissioner for Refugees, Analysis of Refugee Protection Capacity - Kenya, April 2005, available
at: http://www.refworld.org/docid/472896f70.html [accessed 21 May 2013]
147 Consideration of reports submitted by States parties under article 40 of the Covenant ,Third periodic report of
States parties, Kenya 19 August 2010, available @
http://www.ccprcentre.org/doc/HRC/Kenya/CCPR.C.KEN.3_en.pdf
148 According to the Act statutory refugee means, if such person— (a) owing to a well-founded fear of being
persecuted for reasons of race, religion, sex, nationality, membership of a particular social group or political opinion
is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the
protection of that country; or (b) not having a nationality and being outside the country of his former habitual
residence, is unable or, owing to a well-founded fear of being persecuted for any of the aforesaid reasons is
unwilling, to return to it.
49
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 in order to seek refuge in another place
outside his country of origin or nationality.”
5.2.3.2 Explanation on the definition of prima facie refugee
It is the only legislation to use the term ‘prima facie’149 and is similar to part of the definition
stipulated in the OAU Convention.150 It uniquely links its meaning to protection under the OAU
Convention, which might lead to an interpretation that prima facie refugees under it are only
limited to the broader OAU refugee definition and have different
status other that the
Conventional refugees. As discussed, the status of refugees who falls under article 1 (2) of the
OAU in relation to the Geneva Convention is not clear. Similarly, the factors that trigger the
application of PFRSD are contended issue.
Generally, the practical reason that led the government of Kenya to adopt PFRSD is due to the
limitation associated with resources. As indicated earlier the government could no longer
accommodate asylum seekers on an individual basis after 1991 and instead, the refugees became
accepted under the 1969 OAU Convention and the Refugee Act of Kenya, which allowed for the
admittance of refugees on a prima facie basis. According to information obtained from UNHCR
sub office Dadaab, the application of this procedure takes into consideration the general situation
in the country of origin, usually forcing a mass influx coupled with an urgent need to provide
assistance to a large number of persons. 151
When using PFRSD, objective information on the country of origin information is evident.
Consequently there are a number of countries that have resorted to group determination where
the refugee status of the persons concerned seemed evident on objective grounds. 152 When
Albert. Mattew. (2010) “Prima Facie Determination of Refugee Status: An overview and its legal foundation”,
Thesis for Master of Science in Forced Migration at the Refugee Studies Centre, University of Oxford
150
According to article 1 (2) of the OAU Convention Refugee is defined “The term “refugee” shall also apply to
every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing
public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of
habitual residence in order to seek refuge in another place outside his country of origin or nationality.”
151
Email Communication with Dadaab Offuce
152
UNHCR, Note on International Protection 1993: UN doe. AlAC.96/815, para. 27.
149
50
circumstances, in the country of origin are such that any reasonable person from a particular
group would fear persecution the “Subjective element" of the refugee definition (i.e., "fear") can
be presumed.153
In case of Somali refugees, the cause of flight includes civil war, the collapse of State of Somalia
and famine. In general most of the reasons are related to the civil war and its consequences:
physical threats, extreme violence, persecution, general lawlessness, anarchy, and others.154 In
practice, PFRSD is processed to Somalis escaping the civil war or other individualized form of
persecution, once the place of origin is confirmed and with the presumption that he or she
belongs to a particular group.155 It is difficult to categorize, the cause of flight from this general
information and due to the nature of the influx.
However, recognition under prima facie basis does not completely negate the fact that some of
the persons can and do meet the more restricted and individualized definition and have actually
escaped persecution, which is usually revealed after the emergency phase has passed; this usually
takes place in the course of exploring durable solutions primarily for resettlement purposes.156 In
practice, there are cases that are recognized under the broader OAU definition and yet again
recognized through individual RSD like the Congolese from the Kivus and South Sudanese
originating from certain regions.157 Similarly, if group determination is not considered
appropriate, the recent experience of several countries demonstrate that individual refugee status
determination can be feasible, albeit at some expense, even in situations of large-scale influx.158
To add, according to UNHCR Guidelines on the Application PFRSD; it is appropriate to use the
procedure, where there are grounds for considering that the large majority of those in the group
153
Ibid, para. 27.
Many asylum seekers experienced attacks, rapes or kidnapping, and most of them had had members of their
families killed or wounded in the anarchy. See Joëlle Moret ,Simone Baglioni, Denise Efionayi-Mäder, (2009)“The
Path of Somali Refugees into Exile A Comparative Analysis of Secondary Movements and Policy Responses”,
Swiss Forum for Migration and Population Studies available online at
https://doc.rero.ch/record/6426/files/s_46.pdf
155
Email Communication with UNHCR Dadaab Office
156
Ibid
157
Ibid
158
UNHCR, Note on International Protection 1993: UN doe. AlAC.96/815, para. 27.
154
51
would meet the eligibility criteria set out in the applicable refugee definition.159 The definition is
inclusive of Article 1 of the Geneva Convention and; Article I (1) or (2) of the 1969 OAU
Convention.160 Accordingly, the government of Kenya was obliged to accept the large number
of Somalis partly because of its commitment in international law to both Conventions, and partly
because it needed the continued support of donor countries.161
The application of the prima facie approach does require the consent of the government of
Kenya, either explicitly or implicitly as the Conventions do not clearly stipulate the mean of
recognition as such and it is not a legal consequence to recognition under the OAU
Convention.162 Therefore the decision to use PFRSD does not totally depend on the refugee
definition of the asylum seeker but rather on the objective information of the country of origin
and on the capacity of the state to conduct individual RSD.
It has also been argued that because of practical considerations often compels the grant of
refugee status to groups in the so called prima facie refugees, which is now considered as to be
one of the unique characteristics of the extended refugee definition ( including 3 (2) ) of the Act.
Still within the framework of that definition, both concepts, that is, refugee status granted to
groups and PFRSD are seen as one and the same thing. However, the practical use of prima
facie status determination is not required by the 1969 OAU Convention and it cannot be cited as
a direct source, in fact, nowhere in its definition of a refugee or the whole Convention the term
“prima facie” is mentioned.163 It was mainly a convenient procedure and when refugees are
flowing in by the thousands, it is necessary to have an expedited procedure so that refugee status
can quickly be determined, and assistance can immediately follow.164
159
UNHCR Guidelines on the Application in Mass Influx Situations of the Exclusion Clauses of Article 1F
of the 1951 Convention relating to the Status of Refugees, para 9
160
Ibid
161
Ibid
162
UNHCR Guidelines on the Application in Mass Influx Situations of the Exclusion Clauses of Article 1F
of the 1951 Convention relating to the Status of Refugees, para 12
163
Okoth-Obbo, G., (2001), “Thirty years on: a legal review of the 1969 OAU Convention Governing the Specific
Aspects of Refugee Problems in Africa’, Refugee Survey Quarterly,
164
Ibid
52
Moreover, as history and state practice indicate, the use of PFRSD is not limited to refugees who
fulfill the extended refugee definition. PFRSD or group eligibility was used in cases of
Hungarian refugees although it was believed that they fulfill the criteria under the Geneva
Convention, and some African states use the procedure interchangeably. (see section 4.2.2)
George Okoth-Obbo, has argued that refugee status granted to groups and PFRSD as a procedure
are often confused and considered to be as part of the OAU Convention.165 He further argued
that the OAU Convention does not deal with both concepts. On the contrary article 3 (2) of the
Refugee Act give a substantive element to PFRSD. As indicated earlier it is not clear under
international refugee law whether PFRSD can yield to a status or not, in fact, the concept as such
is non-existent in international refugee law.166 According to Mr. Okoth-Obbo the legal
developments with regards to this issue, is imperative in African legal system, because the real
deficit in refugee law exists in both the Geneva and the OAU Conventions and the legal standard
for both substances and procedures are quite paltry under international law. 167
Under article 3 subsection 3 of the Act, the Minister can issue and revoke a declaration of prima
facie status at any time.168 In practice, however the government has never issued a declaration for
the prima facie refugees recognized so far. In the absence of explicit decree, with regards to the
revocation provision, a person will have the second chance to apply for another refugee status
through individual RSD, after being denied prima facie status at the initial stage. 169
165
Ibid
Ibid
167
Ibid, pp 118
168 If the Minister considers that any class of persons are prima facie refugees as defined in subsection (2), the
Minister may declare such class of persons to be prima facie refugees and may at any time amend or revoke such
declaration.
169 Article 3 (4) states ” If the Minister under subsection (3) expressly excludes or exempts any person from a
declaration that a class of persons to which that person is a member are refugees, such exclusion or exemption shall
not preclude the person concerned from applying under subsection (2) for recognition of their status as a refugee.”
166
53
5.2.6 Refugee Status Determination including Prima Facie Determination in
Kenya
The procedure to conduct prima facie determination is not codified under international and
domestic law of Kenya, rather implemented through ad hoc procedures introduced by UNHCR.
According to the UNHCR Handbook the responsibility to conduct status determination falls
upon the Contracting State in whose territory the refugee applies for recognition of refugee
status.170 Unlike the individual RSD, PFRSD does not have procedural guidance; merely a brief
introduction of the procedure is stated in paragraph 44 of the Handbook.
In Kenya RSD is handled by the Refugee Act. According to the Act, the Refugee Affairs
Committee is responsible for refugee status determination.171 In principle it is the responsibility
of this Committee to conduct RSD, tough in practice, UNHCR has undertaken the responsibility.
Before 1998 the government had an established refugee status determination process, and
refugees who qualified were granted a status in accordance with the Geneva Convention.172
However, due to the large influx of refugees in the country in the early 1990s the government’s
capacity to interview a large number of refugees was challenged, and UNHCR took this
responsibility, while the government has taken the back seat.173
With the support of UNHCR and other stakeholders, Department of Refugee Affair is currently
striving to augment its capacity and to assume greater responsibility for refugee and asylum
issues. A national refugee policy is in preparation, while DRA has undertaken a refugee
registration exercise in Nairobi and plans to assume progressive responsibility for RSD. 174
170 UNHCR Handbook on procedures and Criteria for Determining Refugee Status (1979, re-edited 1992) pp 1
171 Under article 8 (2) of the Refugee Act of Kenya “The Committee shall assist the Commissioner in matters
concerning the recognition of persons as refugees for the purposes of this Act.”
172
FORUM: UNHCR refugee status determination: The Kenyan experience available
at
http://rsdwatch.wordpress.com/2005/11/13/forum- UNHCR-refugee-status-determination-the-kenyan-experience/
173
Email Communication with UNHCR Dadaab Office
UN High Commissioner for Refugees, Analysis of Refugee Protection Capacity - Kenya, April 2005, available
at: http://www.refworld.org/docid/472896f70.html [accessed 21 May 2013
174
54
With regards to PFRSD, there seem to be different approaches taken in the experience of African
states.175 The first approach is to begin by applying the refugee definition of the Geneva
Convention and to move on to the broader definition of the 1969 Convention only if the
individual does not qualify under the Geneva Convention.176 The second approach is to apply
mostly determination procedure based on the OAU definition, even if the Geneva Convention
would be applicable equally.177 Thirdly, states automatically use OAU definition even if the
Geneva Convention be applicable.
178
These approaches are directly related to the nature of
plights.
In Kenya the approach is different in that the decision which procedure to use is based on the
information of the asylum seeker. The prima facie procedure does not apply to all nationalities,
but only apply to Somalis particularly those coming from South and Central Somalia.179 Up on
arrival in the camps, asylum seekers are required to conduct registration and interview which
involves questions to verify nationality, country and region of origin, and facts that may trigger
the exclusion.
180
Once it is confirmed that the person is from Southern and Central Somalia, he
or she is eligible for prima facie registration, and those suspected of being excluded under article
1 (F), a separate exclusion interview will be conducted . Up on verification, prima facie status is
granted.
UNHCR conducts individual RSD interviews for applicants from other nationalities coming
from Ethiopia, South Sudan, DRC, Sudan, Uganda, Rwanda, Burundi and Tanzania, and Somalis
originating from the North or those who are suspected of being implicated under the excludable
acts of the Conventions.181
Marina Sharpe (2013) “The 1969 OAU Refugee Convention and the Protection of People fleeing Armed
Conflict and Other Situations of Violence in the Context of Individual Refugee Status Determination” University of
Oxford,
176
Ibid. This is the approach in Benin and Burkina Faso. In the latter country, decisions are rendered on a form that
instructs the decision-maker to proceed according to this sequence. This approach is supported by paragraph 9 of the
preamble to the 1969 Convention, which recognizes the 1951 Convention as ‘the basic and universal instrument
relating to the status of refugees’, as well as by the ordering of the two refugee definitions in Article I of the 1969
Convention.
177
Ibid, this approach is used mainly in Angola and Mozambique
178
Ibid,
179
Email Communication with UNHCR Dadaab Office
180
Ibid
181
Ibid
175
55
5. 2.4 The Applicability of Human Right Conventions to Prima Facie Refugees
It is difficult to avoid the applicability of Human Right Conventions to prima facie refugees
especially when it comes to the standards of treatment in camps. Although the status of these
refugees does not have clear stand under international refugee law, certain standards nonetheless
apply to all people, citizens or refugees. Crossing an international border does not deprive
asylum-seekers and refugees of their human rights; whatever label they are given and wherever
they are.182 Human rights standards apply to all human beings, thus also to refugees.183
Kenya has signed a number of international Human Right Conventions which includes the
International Covenant on Civil and Political Rights (ICCPR) and, the International Covenant on
Economic, Social and Cultural Rights (ICESCR). Universal Declaration of Human Right
(UDHR) together with ICESCR and ICCPR and its optional protocol are known collectively as
the International Bill of Human Rights. The Constitution of Kenya remind the states to regard the
Bill of Rights as an integral part of Kenya’s democratic state and is the framework for social,
economic and cultural policies.184 Moreover, in light of the changing nature of refugee problems
in mass influx situation, it has been addressed by international community that refugee solutions
must also be supplemented by human rights Conventions.185 For the purpose of this section only
these two Covenants in addition to UDHR will be addressed in connection with the standards of
treatments of prima facie refugees in Dadaab.
182
Amnesty International, Rights Wherever You Are, AI-index: POL 33/001/2002, November 4, 2002, available at
http://www.amnesty.org/fr/library/asset/POL33/001/2002/fr/977d935b-d78e-11dd-b02421932cd2170d/pol330012002en.html
183
James Darcy, “Human Rights and International Legal Standards: What do Relief Workers Need to Know?”,
Relief and Rehabilitation Network, Paper No.19, February 1997
184
Article 19(1) of the Kenyan Constitution reminds us that the Bill of Rights is an integral part of Kenya’s democratic
state and is the framework for social, economic and cultural policies. 19. (1) states “ The Bill of Rights is an integral
part of Kenya’s democratic state and is the framework for social, economic and cultural policies.”
185
Document E/CN.4/1503. Fact Sheet No.20, Human Rights and Refugees
56
5.2.5 Basic standards of Treatments
Refugees have a number of rights and responsibilities under refugee and human right law
Conventions, once granted admission in Kenya. Section 16 (1)186 of the Act provides the rights
and obligations contained in the international conventions to which Kenya is a party, to
recognized refugees and their families. However, it does not give explanation as to what the
rights and obligations entails. With the exception of few rights like, the right to identification of
document (Section 14-a)187, the wage-earing employments (article 16(4))188, and the principle of
Non refoulement (Section 18-b)189, it does not explicitly address the applicable rights to prima
facie refugees.
Since Kenya is a party to the Geneva and OAU Conventions, the direct reading of the provision
could mean that “recognized refugees” and their families are covered under both Conventions.
However, it is not clearly stated if prima facie refugees are beneficiary of the provision. Different
scholar arguments have developed in connection with the principle of non-discrimination. Article
3 of the Geneva Convention and Article IV of the OAU Convention; oblige member states not to
discriminate refugees in the application of the provisions of the respective conventions. This
principle also cuts across other human rights instruments such as the ICCPR, and ICESCR.
Accordingly, it has been argued that since the principle of non-discrimination requires that all
refugees be treated equally, irrespective of their race, religion, nationality, membership of a
particular social group or political opinion: prima facie refugee under the Act should be provided
equal rights as the conventional refugees.190 However, the interpretation seems general and ideal,
186 Article 16 1 (a) of the Act states “refugees shall be entitled to the rights and be subject to the obligations
contained in the international conventions to which Kenya is party.”
187
Section 14 (a) provides that ‘every refugee and asylum seeker shall be issued with a refugee identity card or
pass.’
188
Section 16(4) provides that in respect of wage earning employment refugees shall be subject to the same
restrictions as imposed on persons who are not citizens of Kenya
189
No person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or
subjected to similar measure if, as a result of such refusal, expulsion, return or other measure, such person is
compelled to return or remain in a country where - (a) The person may be subject to persecution on account of race,
religion, nationality, membership of a particular social group or political opinion; or (b) 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.
190
Refugee Consortium of Kenya, “Asylum under threat Assessing the protection of Somali refugees in Dadaab
refugee camps and along the migration corridor” A publication of the Refugee Consortium of Kenya with the
support of the Danish Refugee Council June 2012, (3-98)
57
looking to the practical situation of the state capacity to provide the large number of prima facie
refugees the standard of treatment accorded in the Geneva Convention.
As to the standards of treatment accorded by the Geneva Convention, the Convention is
considered to provide what can be viewed as minimum rights in which Conventional Refugees
are entitled. These rights in general can be classified into three categories.191
Those that require refugees to receive the same treatment as nationals of the receiving country:
which include, free exercise of religion and religious education (art 4 ),access to the courts,
including legal assistance (art 16), access to elementary education (art 22), access to public
relief and assistance (art 23), and others. The second classifications are those that require
refugees to receive the most favorable treatment provided to nationals of a foreign country:
which include the right to belong to trade unions (art 15), the right to engage in wage-earning
employment (art 17). Thirdly are those rights that require refugees to receive the most favorable
treatment possible, which must be at least as favorable to that accorded to nationals of a foreign
country generally in the same circumstances: which include, the right to choose their place of
residence and to move freely within the country (art 26 ), the right to own property (art 13), the
right to self-employment (art 18 ) access to housing (art 21 ) access to higher education (art 22 )
and others.
The general understanding under international refugee law is that, these rights are crafted in
respect of refugees recognized individually, while it is difficult to argue similarly to refuges
determined through PFRSD.192
The applicability of ExCOM no 22 to prima facie refugees can easily be reached. The Executive
Committee of the UNHCR has concluded that, after admission, asylum-seekers should be treated
in accordance with certain minimum standards as recommended to any asylum seekers admitted
into a state. Although none of the Excom issued so far use the term prima facie; it’s easier to
191
Ibid
Refugee Consortium of Kenya, “Asylum under threat Assessing the protection of Somali refugees in Dadaab
refugee camps and along the migration corridor” A publication of the Refugee Consortium of Kenya with the
support of the Danish Refugee Council June 2012, (3-98)
192
58
assume their inclusion within the context of “admitted asylum seekers”.
The main goals of
protection within the recommendation context include; ensure admission and at least temporary
asylum, prevent forcible return (“refoulement”) and to ensure refugees are treated according to
basic human rights standards.193 Parts of the standard focus on civil rights in particular those set
out in the UDHR.194 (For details refer to chapter 4)
Moreover the applicability of rights under ICCPR, to refugees and asylum seekers in general, has
been clearly endorsed by the Human Rights Committee when issued a General Comment setting
forth the rights of aliens under the International Covenant on Civil and Political Rights, and
those aliens would include refugees.195 The Committee indicated that the rights prescribed in the
ICCPR apply to “all individuals within its territory and subject to a ratifying Government’s
jurisdiction”, and identified the “general rule” “that each one of the rights of the Covenant must
be guaranteed without discrimination between citizens and aliens” (which can include refugees
and asylum seekers).196
In general these standards mainly focus on basic human right treatment that as asylum seeker
should receive upon admission as an emergency response, without referring to most of the rights
enshrined under the Geneva Convention. However, UNHCR on a different note has indicated
with regards to ExCom no 22 that “the Conclusion was never intended as a substitute for
standards of protection under the 1951 Convention.”197 The applicability of Human Right Laws
is easier to reach than the refugee law regime, although protection under the Geneva Convention
cannot at the same time be totally excluded. Accordingly this section will address the specific
application of selected rights under both regimes.
“A Handy Guide to UNHCR Emergency Standards and Indicators” An extract from Handbook for Emergencies,
United Nations High Commissioner for Refugees, Geneva, 2000
194
Ibid
195
See Human Rights Committee, General Comment 15, The position of aliens under the Covenant (Twenty-seventh
session, 1986), Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 18 (1994). Available at
http://www1.umn.edu/humanrts/gencomm/hrcom15.htm
196 Ibid
197 Global Consultation on International Protection “ Report of the First Meeting in the Third Track” UN Doc
EC/GC/01/7
193
59
5.2.7 Protection Gaps
The situation of prima facie refugees in Dadaab is far from being ideal. The camp is located
around 500 km from Nairobi and 80 KM from the border in a semi-arid region.198 It is reported
that the Kenyan authorities have not responded adequately to the increasing overcrowding in the
Dadaab refugee camps and the consequent strain on the provision of essential services to asylumseekers and refugees.199 Consequently there are a number of refugees and human rights
violations however; this paper will only address the most vivid violations that are commonly
addressed in connection with camp refugees like physical security, restrictions on freedom of
movements, the right to work and the right to have travel documents.
5.2.7.1 Physical Security Threat
One of the biggest protection concerns in Dadaab is the physical security threat of refugees. It is
impossible to quantify the amount of violence which takes place in and around the camp.
Incidents of banditry and shootings, tensions between refugees and the local community, small
arms filtering into the camps, and attacks and rapes on women while collecting firewood, have
been reported for many years.200 The situation has aggravated over the past years by
overcrowding, kidnapping of humanitarian aid workers, explosive attacks targeting the Kenyan
police forces, as well as attacks on refugee leaders trying to ensure safety.201
Following three explosive attacks in December 2011, killing and injuring several police officers,
the police launched a series of counter-measures, which punished the refugee population both
directly and indirectly.202 There are reports indicating that the police in Kenya imposed curfews,
Peter Kirui and Dr. John Mwaruvie (2010), “The Dilemma of Hosting Refugees: A Focus on the Insecurity in
North-Eastern Kenya” International Journal of Business and Social Science, Vol. 3 No. 8
199
Refugee Consortium of Kenya, “Asylum under threat Assessing the protection of Somali refugees in Dadaab
refugee camps and along the migration corridor” A publication of the Refugee Consortium of Kenya with the
support of the Danish Refugee Council June 2012, (3-98)
200
Refugee Consortium of Kenya, “Asylum under threat Assessing the protection of Somali refugees in Dadaab
refugee camps and along the migration corridor” A publication of the Refugee Consortium of Kenya with the
support of the Danish Refugee Council June 2012, (3-98)
201
Ibid
202
Ibid
198
60
travel restrictions, indiscriminate arrests of refugees, beatings, rapes and other incidents in
response to the attack.203 The Concluding observations adopted by the Human Rights Committee
(CCPR) in 2012 has addressed similar insecurity problems in Dadaab, and indicated its concern
at acts of physical and sexual violence by the police towards refugees.204
Ensuring the physical security of refugees is an essential part of refugee protection,205 which
entails among other things, securing their areas of residence and taking steps to prevent their
safety from being jeopardized.206 It also requires that the living environment of refugees should
be peaceful, humanitarian and civilian, free of violence and criminal activity, and conducive to
the realization of human. The question that can arise here is whether the government of Kenya
has the responsibility to protect the physical security of prima facie refugees in Kenya?
Under refugee and human rights law, a host state is obliged to ensure the physical protection of
all persons within its borders.207 UNHCR’s Statute and Article 35 (1)208 of the Geneva
Convention provide UNHCR with a mandate to monitor and assist states in their primary
obligation to provide physical protection to refugees. With this states agree to cooperate with the
UNHCR in one of its duties, which are the promotion of international agreements for the
protection of refugees and the overseeing of their application.209 Article 17(e) of the Refugee Act
can also be interpreted as to provide physical protection to camp refugees.210
This right is also enshrined in various human right instruments including UDHR, ICCPR, and
ICESCR. Among other provisions article 3 and 5 of the UDHR explicitly guarantee the right.
203
Ibid
UN Human Rights Committee (CCPR), Consideration of reports submitted by States parties under article 40 of
the Covenant : International Covenant on Civil and Political Rights, Concluding observations adopted by the
Human Rights Committee at its 105th session, 9-27 July 2012, Kenya, CCPR/C/KEN/CO/O3
205
UN High Commissioner for Refugees (UNHCR), Protection Guidelines Relating to Refugee Security, 3 May
1999, available at: http://www.refworld.org/docid/4124bee54.html [accessed 23 October 2013]
206 Ibid
207 UNHCR, A Comparative Review of Refugee Security Mechanisms, Hall, I., and Gupta, H., (ESS), 2004
208 Article 35 (1) states “The Contracting States should undertake to co-operate with the Office of the United
Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the
exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of
this Convention.”
209
UNHCR (2006),“Operational Protection in Camps and Settlements. A Reference Guide of Good Practices in the
Protection of Refugees and Other Persons of Concern”
210
There shall be a refugee camp officer, for every refugee camp whose functions shall be to— (e) co-ordinate the
provision of overall security, protection and assistance for refugees in the camp;
204
61
According to article 3 “Everyone has the right to life, liberty and security of person” and Article
5 states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.” It has also been addressed in the ICCPR under article 9 (1), article 6211 and article
7212. Article 9 (1) states “everyone has the right to liberty and security of person.” In addition,
article 6 protects the “inherent right to life” of every human being, and article 7 states that no one
shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
In general, the applicability of the ICCPR functions on the basis of state obligations within their
jurisdiction. This is manifested under article 2 (1) of the Convention which states “Each state
party to the present Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant...” The
jurisdictional interpretation of Dadaab is not difficult to prove because it is physically located
within the territory of Kenya. The territorial principle of jurisdiction remains the most basic
organizing principal in a world order constituted primarily of and by territorially organized
States.213 Moreover the fact that Kenyan government controls these areas through its local
administration and police forces gives clear authority to the principle of effective jurisdiction.
Accordingly prima facie refugees in Dadaab will be entitled to the protection of physical security
as long as they are with in the territory of Kenya. This right has been emphasized by Excom
Conclusion No.72 (XLIVI) 1993, which explicitly states “it is the responsibility of States to
respect and ensure the fundamental human rights of refugees and asylum-seekers to life, liberty
and security of person as well as to freedom from torture or other cruel, inhumane or degrading
treatment or punishment”214
In short the government of Kenya has obligation to provide physical security to all refugees both
according to Refugee and Human Right Conventions and it has failed to uphold its obligations.
In this regards, the Human Rights Committee (CCPR) in its concluding observation report in
Article 6 (1) states “Every human being has the inherent right to life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life”
212 Article 7 “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In
particular, no one shall be subjected without his free consent to medical or scientific experimentation.
213
Liv Halperin, (2003 ) “ The Physical Security of Refugees in Kenya Camps Legal and Human Rights
Implications” Master of Arts in Law and Diplomacy Thesis
214 UNHCR, Personal Security of Refugees, Excom Conclusion No.72 (XLIVI) 1993, preamble clauses
211 .
62
2012 has urged the state to take concrete measures to provide adequate security at refugee
camps, particularly at Dadaab camp, and to conduct thorough investigations into all incidents of
violence including allegations of violence by law enforcement personnel and bring those
responsible to justice.215
5.2.7.2 The Right to Move Freely
Refugees wishing to leave Dadaab are required to obtain movement passes which authorizes
only for refugees travelling for specific reasons like; higher education, medical treatment,
resettlement, trade or business requirements, or to escape major security threats in the camp.216
Permits are only issued by DRA and applications often take a long time to process and can be
turned down arbitrarily. Those who decided to leave without pass are subject to harassment or
asked for documentation and often turned back.217 Aside from the right itself, freedom of
movement into and out of the camp will be essential to have access to cultivated fields, water
sources, paid employment and so on.218 The question that follows here is: whether prima facie
refugees have the right to move freely within Kenya under refugee and human right laws.
Generally the right of refugees to move freely is enshrined under the Geneva Convention and
Refugee Act of Kenya. Article 16 (1)219 of the Act connects this right with article 26 of the
Geneva Convention. Article 26 states “Each Contracting State shall accord to refugees lawfully
in its territory the right to choose their place of residence and to move freely within its territory
215 UN Human Rights Committee (HRC), Consideration of reports submitted by States parties under article 40 of
the Covenant : International Covenant on Civil and Political Rights, Concluding observations adopted by the
Human Rights Committee at its 105th session, 9-27 July 2012, Kenya, CCPR/C/KEN/CO/O3 , para 12 states “The
State party should take concrete measures to provide adequate security at refugee camps, particularly at Dadaab
camp. The State party should conduct thorough investigations into all incidents of violence including allegations of
violence by law enforcement personnel and bring those responsible to justice. The State party should also ensure
that the victims of the violence are adequately compensated”
216 Anna Lindley (2011),“ “Between a Protracted and a Crisis Situation: Policy Response to Somali Refugees in
Kenya” The Path of Somali Refugees into Exile A Comparative Analysis of Secondary Movements and Policy
Responses
217 Ibid
218
Training Manual on Human Rights Monitoring - Chapter X: Monitoring and Protecting the Human Rights of
Refugees and/or Internally Displaced Persons Living in Camps, available at
http://www1.umn.edu/humanrts/monitoring/chapter10.html
219 Article 16 1 (a) of the Act states “refugees shall be entitled to the rights and be subject to the obligations
contained in the international conventions to which Kenya is party”
63
subject to any regulations applicable to aliens generally in the same circumstances”. 220 The right
has also been guaranteed in different human right instruments. Article 13 of the UDHR stipulate:
Everyone has the right to freedom of movement and residence within the borders of each State.
Article 12 (1) of the ICCPR, states “Every individual shall have the right to freedom of
movement and residence within the borders of a State provided he abides by the law”. However,
this right is not without limitations.
The applicability of the Act and the Geneva Convention to prima facie refugees is subject to
different interpretations. To begin with the Refugee Act does not explicitly require for
encampment, although makes reference to designated places of residence. Section 16(2) (a) and
(b) states that the ‘Minister may by notice in the Gazette, in consultation with the host
community, designate places and areas in Kenya to be transit centers for 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 refugee
camps’. The actual location of these camps has not yet been designated. The Act also makes
indirect reference to the encampment policy through other provisions221.
The applicability of section 16 (1) to prima facie refugees has not yet attained a clear stand. As
mentioned, the Act failed to provide the scope of this provision. The High Court of Kenya in a
recent decision in the case of Kituo Cha Sheria and others v. The Attorney General confirmed
the applicability of the provision to urban refugees. On 26 July 2013, the Court has passed
judgment with regards to urban refugees who were forced to leave the cities and live in camps.
The case was brought by eight petitioners against a decision of the government to move all
refugees residing in urban areas to the Dadaab and Kakuma Refugee Camps and ultimately to
their home countries. The first phase of rounding-up, which is targeting 18,000 persons started
on 21 January 2013, and the security officers started by rounding the refugees and transporting
them to Thika Municipal Stadium which would act as the holding ground as arrangement for
220 Article 26 of the 1951 Refugee Convention, see also article 2 of the OAU Convention, which requires states
require states as far as possible, to settle refugees at a reasonable distance from the frontier of their country of origin.
221 Section 17(f) empowers Refugee Camp Officers to issue movement passes to refugees wishing to travel outside
of the camps, Section 25(f) makes unauthorized residence out of the camp an offence punishable by a fine of up to
KES 20,000 and/ or imprisonment for six months
64
moving them to the Camps.222 The court in its legal analysis declared that the laws in Kenya “do
not prohibit refugees from residing anywhere in Kenya” which is clearly manifested under the
Geneva Convention and the Act. However, the applicability of this rule to prima facie refugees
depends on the interpretation of urban refugees and the scope of article 16 (1) of the Act. The
international community has welcomed the decision considering it as a landmark to the right of
refugees in general, and hoping future jurisprudence will develop in favor of camp refugees.
Article 12 of the ICCPR, guarantees the right to move freely of individuals within territory of a
state. Commenting on the implication of this provision, the Human Rights Committee in its
General Comment No. 27 adopted at the sixty-seventh session of the Human Rights Committee
on 2nd November 1999, paragraph 4 notes as follows: “Everyone lawfully within the territory
of a State enjoys, within that territory, the right to move freely and to choose his or her place of
residence. In principle, citizens of a State are always lawfully within the territory of that State.
The question whether an alien is lawfully‘ within the territory of a State is a matter governed by
domestic law, which may subject the entry of an alien to the territory of a State to restrictions,
provided they are in compliance with the State‘s international obligations. In that connection, the
Committee has held that an alien who entered the State illegally, but whose status has been
regularized, must be considered to be lawfully within a State, any restrictions on his or her rights
guaranteed by article 12, paragraphs 1 and 2, as well as any treatment different from that
accorded to nationals, have to be justified under the rules provided for by article 12, paragraph
3.223 In cases of prima facie refugees, their status can be regarded as regularized once determined
as such and the government has to provide justification for the different treatment.
The question whether the restriction imposed in the camp fulfill the limitations prescribed under
subsection 3 is still subject to different interpretations. In other words the justification needs to
take into consideration if the decision of the government limiting this right was to preserve
222 Kituo Cha Sheria and others v. The Attorney General, Petition No. 115, High COURT of Kenya at Nairobi,
Constitutional and Human Rights Division available at: http://www.refworld.org/docid/5151b5962.html [accessed 3
September 2013]
223 General Comment No. 27: Freedom of movement (Art.12) : . 11/02/1999. CCPR/C/21/Rev.1/Add.9, General
Comment No. 27. (General Comments) available at
http://www.unhchr.ch/tbs/doc.nsf/0/6c76e1b8ee1710e380256824005a10a9?Opendocument
65
public order, public health or other limitation according to subsection 3.
Sub section 3
articulates the limitation as follows: “The above-mentioned rights shall not be subject to any
restrictions except those which are provided by law, are necessary to protect national security,
public order (order public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.”
In this the High Court of Kenya in case of Kituo Cha Sheria and others v. The Attorney General
has addressed clearly that it is incumbent upon the State to demonstrate in every case the person
concerned can actual cause harm to the state and should not be generalized.”224 The government
has to show the rational connection between the purpose of the decision to limit refugees
movement outside the camp and the conditions of subsection 3, for every refugee individually.
The government in its state submission report for 2010 ( Third Period Report of the state party
on the ICCPR) has stated that the Refugee Act “has clear provisions for the promotion and
protection of refugees in Kenya and … it provides protection from discrimination to asylum
seekers, refugees and the families of refugees upon entering Kenya”.
225
This report has been
interpreted by Amnesty International that the restriction on freedom of movement imposed to
refugees in camps is considered as a contravention of the Covenant and its own Refugee Act.226
The Amnesty International report on “The treatment of Somali refugees and asylum-seekers in
Kenya”227 produced in 2010 acknowledged that permission to move outside camp is granted to
Paragraph 87 of the case of Kituo Cha Sheria and others v. The Attorney General states “ it is incumbent upon
the State to demonstrate that in the circumstances, such as the present case, a specific person’s presence or activity
in the urban areas is causing danger to the country and that his or her encampment would alleviate the menace. It is
not enough to say, that the operation is inevitable due to recent grenade attacks in the urban areas and tarring a group
of person known as refugees with a broad brush of criminality as a basis of a policy is inconsistent with the values
that underlie an open and democratic society based on human dignity, equality and freedom.”
225 Human Right Report of the state of Kenya for 2010 Third Period Report of the state party on the ICCPR
available at www.state.gov/documents/organization/160127,
The specific state report paragraph 159 states “ Kenya has enacted the Refugee Act, 2006 which has clear provisions
for the promotion and protection of refugees in Kenya. This Act domesticates the African Union and United Nations
Conventions on Refugees. It provides protection from discrimination to asylum seekers, refugees and the families of
refugees upon entering Kenya. Section 16 states that every recognized refugee and every member of their family in
Kenya shall be entitled to all rights contained in international treaties to which Kenya is a party while they reside in
the country. This provision therefore extends the protections against discrimination as contained in the various
international instruments”
226 Amnesty International (2010), ”Kenya: From life without peace to peace without life: The treatment of Somali
refugees and asylum-seekers in Kenya” available at http://www.amnesty.org/en/library/info/AFR32/015/2010
227
Ibid
224
66
refugees with special needs228 and those travelling without permission risk detention or even
those in possession of a movement pass for medical reasons have at times been arrested. It also
urged the government of Kenya to ensure full freedom of movement in accordance with relevant
international standards to all recognized refugees including those in Dadaab.229 However neither
the Human Right Committee recommendations nor the Kenya’s periodic reports mentioned the
issue.
The stand of UNHCR is this regard is also not clear. In practice UNHCR seems to have accepted
the restriction imposed on the refugee movement in the camps. For instance UNHCR in Dadaab
has accepted the criteria that should be eligible to leave the camp, and refugees who fail to avail
themselves of these criteria will not benefit from any kind of material assistance. 230 On the other
hand, when addressing the right in Excom no 22 of 1981 within the “minimum standard of
treatment” it stated that “refugees in a mass influx situation should not be subjected to
restrictions on their movements other than those which are necessary in the interest of public
health and public order.231 This standard seems to be similar to the limitations provided by
article 12 of the ICCPR.
Some refugee law commentators have argued in favor of host state to confine large number of
refugees in camps. In connection to this Goodwin-Gill stated that “legal experts have recognized
the right of host governments to accommodate refugees in special camps or designated areas”
and article II (6)232 of the OAU Convention may be interpreted as giving states the right to
decide on refugee settlement. 233
228
Special needs includes medical treatment unavailable in the camps, pupils and students who have obtained a
scholarship or a place to study in education establishments outside the camps, for family reasons (such as funerals),
or for attending resettlement interviews set up by embassies of third countries;
229 Amnesty International (2010), ”Kenya: From life without peace to peace without life: The treatment of Somali
refugees and asylum-seekers in Kenya”
available at http://www.amnesty.org/en/library/info/AFR32/015/2010
230 UN High Commissioner for Refugees, Analysis of Refugee Protection Capacity - Kenya, April 2005, available
at: http://www.refworld.org/docid/472896f70.html [accessed 21 May 2013]
231 ExCom No. 22 (XXXII) Protection of Asylum seekers in Situation of Large- Scale Influx (1981)
232
Article II (6) states “For reasons of security, countries of asylum shall, as far as possible, settle refugees at a
reasonable distance from the frontier of their country of origin”
233
Goodwin-Gill, Guy 1996. The Refugee in International Law. Oxford: Clarendon Press pp 300-11 note 31, see
also Schmidt, Anna 2003. Camps versus settlements. Forced Migration Online Research Guide
67
In short the right of refugees to choose once place of residence is enshrined in the domestic law
of Kenya, Geneva Convention and different Human Right instruments. However, the
applicability of this right to prima facie refugee has not yet attained clear stand particularly with
regards to refugee laws (domestic law of Kenya and Geneva Convention). Its applicability can
easily be attained under human right instruments, although the limitation provisions are subject
to different interpretations, and so is the government’s action.
5.2.7.3 The right to work
The right to work is one of a fundamental refugee right affected by the “encampment policy”,
and it is highly dependent on the right to move freely. Not only are employment opportunities
within the Dadaab severely limited, but the ability to obtain employment is hindered by the
remote location of the camp, as well as by the numerous incentives used by the Kenyan
government to keep refugees confined to camps.234 Restrictions on employment deprive refugees
of the ability to rebuild their lives and become constructive members of society.
Article 16(4) of the Refugee Act states: “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” Similarly article 17 235 of
the Geneva Convention requires that the right of refugees to work be equal to that which other
foreign nationals are allowed. Moreover, it is one of the fundamental human rights enshrined in
Article 23 of the UDHR and Article 6 of the ICESCR. 236 The right to work of foreign nationals
in Kenya is well addressed and regulated,237 unlike the case of prima facie refugees. Although
234 Svetlana Sytnik, (2012), “ Rights Displaced: The Effects of Long-term Encampment on the Human Rights of
Refugees” London School of Economics and Political Science, pp 19 (the biggest incentive is that only refugees
living in camps are qualified for humanitarian assistance, and refugees must obtain pass to move outside camp)
235 Article 17 of the Geneva Convention reads, “1. The Contracting State shall accord to refugees lawfully staying
in their territory the most favorable treatment accorded to nationals of a foreign country in the same circumstances,
as regards the right to engage in wage-earning employment.
236, Article 6 of the ICSER states “1. The States Parties to the present Covenant recognize the right to work, which
includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and
will take appropriate steps to safeguard this right.
237 Work/Residence Permits are issued to any Non-Kenyan wishing to engage in employment in Kenya whether
in gainful employment or voluntary service. The Work/Residence Permits issued by the Department are classified
68
the applicability of article 17 of the Geneva Convention is not yet clear to prima facie refugees,
the right is clearly guaranteed though the Refugee Act and ICESCR.
It is also closely linked with dignity and self-reliance. When refugees are denied to work for
unlimited period of time; it can have serious psychological and physical wellbeing implications.
It will automatically create a culture of dependency that discourages refugees from working. In
addition, as with the freedom of movement, maintaining refugees in camps without the right to
work, brings instability and even danger when rations and other aid supplies are low, creating a
host of new problems relating to crime and instability.238
In this regards the
Committee on Economic, Social and Cultural Rights its concern on its 40th and 41st Session in
2008, recommends to the government to issue work permits to all refugees, in accordance with
the Refugees Act (2006) and monitor unfair labor practices and exploitation of refugees in the
informal sector. 239 The violation of the right to work of prima facie refugees under this context
remains to be clear.
5.2.7.4 The Right to Have Travel Documents and other Rights
The right to hold travel documents according to article 28 of the Convention 240 and article VI of
the OAU Convention241, might not be as limited as the above rights, although, in practice the
from A to M inclusive. They are issued under Kenya Citizenship and Immigration Act 2011 of Laws of Kenya. The
various classifications are available at
http://www.immigration.go.ke/index.php?option=com_content&view=article&id=89&Itemid=127
238 CHEN, G, (2005) ‘Confinement and Dependency: The Decline of Refugee Rights in Tanzania’, World Refugee
Survey 2005, US Committee for Refugees and Immigrants, Washington, DC,
239
The Committee on Economic, Social and Cultural Rights, Report on 40 th and 41st Session in 2008 40th and 41st
Session in 2008, E/2009/22 E/C.12/2008/3, para ; states “ The committee is concerned about reports that refugees
are de facto excluded from employment in the formal sector and often receive wages below the minimum wage in
the informal Sector. The Committee recommends that the State party issue work permits to all
refugees, in accordance with the Refugees Act (2006) and monitor unfair labor practices and exploitation of refugees
in the informal sector.”
240 Article 28 of the Convention (Geneva convention), urge states to issue travel document to refugees lawfully
staying in their territory for purpose of traveling outside their territory.
241
Article VI.(1) states “ Subject to Article III, Member States shall issue to refugees lawfully staying in their
territories travel documents in accordance with the United Nations Convention relating to the Status of Refugees and
the Schedule and Annex thereto, for the purpose of travel outside their territory, unless compelling reasons of
national security or public order otherwise require. Member States may issue such a travel document to any other
refugee in their territory”
69
issuance of travel documents is discretional and normally requires the refugee to justify the
reason for the request.
242
An unknown number of refugees move on from Kenya each year
through official family reunion, and occasionally through student migration and work visa
channels, and relatively few are issued with Convention Travel Documents.
243
Before 1990
refugees were eligible for international travel documents from the Government and UNHCR
processed few requests but authorities generally did not consider applications from Somalis.
244
The stand of UNHCR with this regards seems in line with the Conventional requirements. 245
The ill treatment of prima facie refugees in Kenya cannot only be capsulized with these
violations, one could even argue that the right to adequate health care, access to courts, the right
to cultural and religious practices, and arguably the right to a timely solution and due process
(which also relates to obtaining access to other rights in a timely fashion) are severely
challenged. 246
242 Ibid
243 Ibid
244 United States Committee for Refugees and Immigrants, World Refugee Survey 2008 - Kenya, 19 June
2008, available at: http://www.refworld.org/docid/485f50ddc.html [accessed 27 August 2013]
245 At the Special OAU/UNHCR Meeting of Government and Non-Government Technical Experts on the 30th
Anniversary of the 1969 OAU Convention, it was indicated that travel document should be issued to all refugees
without discrimination even if refugees are not intending to travel, see also Rutinwa, B, ‘Prima facie status and
refugee protection’, UNHCR New Issues in, Refugee Research, Working Paper 69, Geneva, UNHCR (2002) , pp 23
246 CHEN, G. “Confinement and Dependency: The Decline of Refugee Rights in Tanzania”, (2005) , World
Refugee Survey 2005, US Committee for Refugees and Immigrants, Washington, DC
70
6.1 General Analysis and Concluding Remarks
The Protection provided to prima facie refugees in Dadaab Camp is below the international
standards set by the Geneva Convention, and various Human Right Conventions despite the
various efforts made by the government. It is undeniable that Kenya is currently honoring its
minimum obligation to refugees in general, in that it has not sent back refugees to a place where
their life would be in danger. However, the level of protection provided to these refugees is not
according to the standard set by the international refugee regime, and Human Right Conventions,
which confirms the general practice of states, especially in Africa.
The legalization of “encampment” policy has grossly restrained list of rights including the
conventional ones. The policy has created a situation where there is limited physical security,
limited freedom of movement, limited or no ability to work, limited legal rights and lack of
status, and so on. Practically the extension of rights to prima facie refugees in Kenya is not in
the first instance intended to promote a permanent solution. The government seems to have
provided certain rights as an interim and with the hope that refugees would return to their
country of origin after a certain period of time. Most of fundamental rights have been suspended
or denied. It has been argued that refugees’ right to life has been bought at the expense of almost
every other right, in which states have only accepted the obligation of. 247 This has been the case
in Kenya since 1991 and there is no indication for improvement.
An important question that addresses a protection gap from the legal regime perspective is;
whether the Geneva Convention, OAU Convention and domestic law of Kenya is adequate to
provide protection to prima facie refugees, and what are the effects of legal ambiguity at the
international level to prima facie refugees in Kenya.
As discussed, the legal uncertainties that exist at the international level created a room for
different interpretations.
It has created a debate on whether or not to consider prima facie
refugees as Conventional Refugees. The complications connected with this obscurity are very
247 Rutinwa, B (2002) ‘Prima facie status and refugee protection’, UNHCR New Issues in, Refugee Research,
Working Paper 69, Geneva, UNHCR, pp 3 [online] available at http://www.refworld.org/pdfid/4ff3f8812.pdf
71
broad. To begin with, it will be difficult to claim any legal rights without clear international
norms and enforcing domestic norms at the same time would not be without challenges.
The situation of these refugees in Dadaab is far from being satisfactory. Physical security of all
camp refugees has been the focus of international community and the situation is getting worst
from time to time. Despite various efforts by the government to halt the situation, security
incidents in the camp remain to be a challenge. As a result prima facie refugees suffer from
different forms of abuses. The movement of refugees is limited only within the camp, and those
wishing to leave should have special reason to apply for a permit. Even those with permit are
subject to police abuse and indiscriminate treatment by police officers. Moreover, this restriction
interferes with other fundamental rights, like the right to attain wage- earning employment,
access to court, and so on.
In light of these gaps the applicability of the Refugee Act of Kenya to prima facie refugee cannot
be easily established. The Act is considered to domesticate most of the principles under the
Geneva and OAU Convention.248 According to article 16 (1), “recognized refugees” are entitled
to the rights stipulated under the Geneva Convention and any other legal instrument Kenya is a
party. However, it is not clear if the term “recognized refugees” includes prima facie refugees. In
general domestic refugee law of Kenya has failed to address the applicable rights of prima facie
refugees except for some rights like the principle of non-refouluma, the right to have documents
and the right to work. Moreover the Geneva Convention does not explicitly address the issue and
the argument that limits prima facie refugees to the OAU Convention and only to the broader
definition has been subject to different criticism.
The applicability of Human Right laws is relatively clear. Refugees, like all people, are entitled
to human rights, which are required to live a life of freedom and dignity. 249 Since Kenya has
ratified the ICCPR and ICSER and its Constitution require integrating the Bill of Rights as
integral part of the state legal system; it has international as well as domestic obligation to fulfill
248 Human Right Report of the state of Kenya available at www.state.gov/documents/organization/160127
249 Arafat Jamal, “Minimum Standards and essential Needs in a Protracted Refugee Situation. A Review of the
UNHCR Programme in Kakuma, Kenya,” UNHCR: EPAU/2000/05, November 2000 Available @
http://www.unhcr.org/3ae6bd4c0.html
72
the applicable provisions to refugees. As emphasized by the UNHCR’s Executive Committee, a
refugee (which includes prima facie refugees) should “enjoy the fundamental civil rights
internationally recognized, in particular those set out in the UDHR and “should not be subjected
to cruel, inhuman or degrading treatment”.
250
The protection gaps stated earlier clearly fall
within the legal mandate of the state. The rights of prima facie refugees under Human Right laws
are in general protected and the government can be considered as violating the rights if the
conditions for concerned rights are met. For instance the right to physical security and the right
to work are violated; although the right to move freely outside the camp is subject to different
interpretations in the context of camp refugees.
Therefore the reasons as to why the government failed to extend protection cannot be totally be
attributed to the legal regime. Legally the standard of treatment or protection to prima facie
refugees in Kenya according to human right laws is not controversial.
Even though the
international and domestic refugee laws fail to address to most of the rights, the human right
laws can be applicable.
It is contended that any gap in the standard of treatment of prima facie refugees does not stem
from the legal regime, rather from the decision of states to suspend or accorded limited
Conventional rights.
251
This is true in the case of Kenya. Although, it is important at this
juncture to understand as to why states opt to suspend and only provide the minimum standard.
The immediate response in case of Kenya is rather domestic related issues, such as economical
capacity, political willingness, security and other reasons depending on the specific category of
rights violated.
The quality of protection started to devaluate after 1990, with the arrival of large number of
refugees, in which apparently have threatened and overwhelmed the institutions, and created
strains on economic resources and its physical infrastructure. Kenya as a developing country has
250 UNHCR, Protection of Asylum-Seekers in Situation of Large Scale Influx, Excom Conclusion No.22 (XXXII)
1981, II.B.2.(b).
251 Sarah Deardorff “How long is too long? Master’s Thesis in Forced Migration at the Refugee Studies Centre,
University of Oxford, pp [online] available at http://www.econbiz.de/en/search/detailed-view/doc/all/how-long-istoo-long-questioning-the-legality-of-long-term-encampment-through-a-human-rights-lens-deardorffsarah/10009006004/?no_cache=1
73
a limited resources, and as a matter of fact it has its own national allocation of resources problem
and dealing with prima facie refugees is beyond reach. Refugees may strain health and education
services, 252 and will overwhelm the job market where the country is struggling to establish to its
citizen.
Kenya, in addition was not willing because granting some of the rights is assumed by the
government to simply trigger local integration. For instance, the land in the north of the country
is unable to sustain very many people because of it is infertile. It would seem unpractical for the
government to provide land for agriculture to refugees. However, states` inability or
unwillingness cannot be a justification for violations. The practical challenges which the
government is facing in managing prima facie refugees should be acknowledged and deserves
the attention of the international community for adequate enforcement.
The reasons as to why the government failed to extend protection cannot be totally be attributed
to the legal regime. Legally the standard of treatment or protection to prima facie refugees at the
minimum according to human right laws and the various ExComm recommendations is not
controversial. Therefore it is difficult to establish in case of Kenya a direct connection between
this legal gap at the international refugee law level and the various violations. The main causes
are directly related other than the unclear refugee status and rights in relation with the Geneva
Convention.
However, this cannot negate the importance of developing clear international refugee law to
prima facie refugees. If they are recognized as “refugees” their right and status should develop
from refugee law perspective as well. The Geneva Convention which is considered as a core
stone and central in the international refugee protection regime, fail to reconcile with the
practical reality of prima facie refugees. In order to cope with this challenge UNHCR has issued
different recommendations, which are on an ad hock basis and not binding. The status of these
refugees in connection to the Geneva Convention remains to be unclear.
252 ibid
74
6.2. Summary Conclusion
Historically the concept of PFRSD started as an emergency strategy by UNHCR in order to solve
immediate mandate and operational challenges of the contemporary refugee situations. When the
number of refugees increased and the individual refugee status determination was not feasible, it
was proposed as an immediate strategy.
There is no international standard agreed definition of what should constitute PFRSD. Like other
eligibility procedures, it contains group, individual, and reliance on objective information of
country of origin features. It is argued that PFRSD is qualitatively different from other forms of
RSD because it does not provide scope for consideration of exclusion or non-inclusion from the
Convention and it is cost effective.
The term “prima facie” does not appear in any international legal instrument pertaining to
refugees, and the legal foundation of PFRSD is a contemporary contented issue which can only
be traced through different interpretations. Similarly the legal status resulted from PFRSD is
blurred. Some commentators argue that it is simply a managerial tool that does not lead to any
status, while others contend that it can lead to a legal status. Moreover, there is a general
tendency of linking “Prima facie refugee” only to the OAU broader refugee definition. However
the argument is subject to different interpretations; because primary the OAU Convention by
itself doesn’t explicitly address it and state practice indicates that both
Neither the Geneva Convention nor the OAU Convention explicitly addresses the rights,
although through the interpretations of the general principles of international refugee law; it
might be possible in the absence of clear legal status. The minimum standard of treatments under
the different ExComm can be applicable; although it can be difficult to infer the status in
connection with the Geneva Convention. Thus it is not clear under international refugee law as
to who specially could qualify as “Prima facie refugee”.
Kenya has ratified the Geneva and OAU Conventions besides a number of Human Right
Conventions like ICCPR and ICSER. The Refugee Act although uniquely provide the definition
75
as to who to qualify as a “prima facie refugee”; except for few, it failed to address their rights
explicitly. On the other hand, Human Right Convention can be applicable and the responsibility
of the government of Kenya becomes clearer in connection with its human right obligations. The
rights, under the ICCPR and ICSER, remain to be vital when raising the issue of protection of
prima facie refugees especially in camp context.
In general the standard of treatment offered in practice, particularly in Kenya is far from being
satisfactory. Fundamental rights like the right to physical security, right to work, the right to
move outside camps, and so on, guaranteed under the Human Right Conventions and domestic
laws are violated. The causes of such violations are not directly related to the legal uncertainty
that exist at the international refugee level, rather failure of implementations on part of the
government because human right law provides protection. The main reasons of protection gaps
are rather state oriented reasons like economic capacity, security, and the political willingness
and so on. Therefore it is difficult to establish a direct connection between the unclear legal
uncertainties and the protection gaps in Dadaab, but this should not undermine the importance of
clarifying the status in connection with the international refugee law.
76
Supplement A
Supplement B : Refugee Act of Kenya 2006
This Act may be cited as the Refugees Act, 2006.
In this Act, unless the context otherwise requires — “Appeal Board” means the Refugee Appeal
Board established under section 9; “appointed officer” means an officer in the public service and
gazette by the Minister for the purposes of this Act;
“Asylum” means shelter and protection granted by the Government to
Persons qualifying for refugee status in accordance with the provisions of this
Act and in accordance with International Conventions relating to refugee
Matters referred to in section 16; “Asylum seeker” means a person seeking refugee status in
accordance with the provisions of this Act; “Commissioner” means the Commissioner for
refugee affairs appointed under section 7;
“Committee” means the Refugee Affairs Committee established under section 8; “country of
nationality” in relation to a person who has more than one nationality, means each of the
countries of which that person is a national; “entry point” means the nearest government
administrative centre; “refugee camp” means any such place as shall be prescribed by the
Minster to be a refugee camp; “Refugee Camp Officer” means a senior officer in the office of the
Commissioner appointed under section 17; “members of family of a refugee” means—
(a) any spouse of the refugee;
(b) any dependent child, brother or sister of the refugee under the age
of eighteen years; or
(c) any dependent grandparent, parent, grandchild, or ward living in the
same household as the refugee;
“Minister” means the Minister responsible for Refugee Affairs.
3. Meaning of “refugee”
77
(1) A person shall be a statutory refugee for the purposes of this Act if such
person— (a) owing to a well-founded fear of being persecuted for reasons of race, religion, sex,
nationality, membership of a particular social group or political opinion is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection
of that country; or (b) not having a nationality and being outside the country of his former
habitual residence, is unable or, owing to a well-founded fear of being persecuted for any of the
aforesaid reasons is unwilling, to return to it.
(2) A person shall be a prima facie refugee for purposes of this Act if such person 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 in order to seek refuge in another place outside his country of origin or
nationality.
(3) If the Minister considers that any class of persons are prima facie refugees as defined in
subsection (2), the Minister may declare such class of persons to be prima facie refugees and
may at any time amend or revoke such declaration.
(4) If the Minister under subsection (3) expressly excludes or exempts any person from a
declaration that a class of persons to which that person is a member are refugees, such exclusion
or exemption shall not preclude the person concerned from applying under subsection (2) for
recognition of their status as a refugee.
4. Disqualification from grant of refugee status
A person shall not be a refugee for the purposes of this Act if such person—
(a) has committed a crime against peace, a war crime, or a crime against
humanity as defined in any international instrument to which Kenya is
a party and which has been drawn up to make provision in respect of
such crimes;
(b) has committed a serious non-political crime outside Kenya prior to
the person’s arrival and admission to Kenya as a refugee;
(c) has committed a serious non-political crime inside Kenya after the
78
persons arrival and admission into Kenya as a refugee;
(d) has been guilty of acts contrary to the purposes and principles of the
United Nations or the African Union; or
(e) having more than one nationality, had not availed himself of the
protection of one of the countries of which the person is a national
and has no valid reason, based on well-founded fear of persecution.
5. Cessation of refugee status
A person shall cease to be a refugee for the purposes of this Act if that
person—
(a) voluntarily re-avails himself of the protection of the country of his
nationality;
(b) having lost his nationality, voluntarily re-acquires it;
(c) acquires the nationality of another country and enjoys the protection
of the country of his new nationality;
(d) voluntarily re-establishes himself in the country which he left or
outside which he remained owing to fear of persecution;
(e) 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
(f) has committed a serious non-political crime outside Kenya prior to
his admission to Kenya as a refugee;
(g) 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.
6. Establishment of Department
(1) There is established a Department of Refugee Affairs which shall be a
public office.
79
(2) The Department of Refugee Affairs shall be responsible for all administrative matters
concerning refugees in Kenya, and shall, in that capacity, co-ordinate activities and programmes
relating to refugees.
7. Commissioner for Refugee Affairs
(1) There shall be a Commissioner for Refugee Affairs whose Office shall be an Office in the
Public Service, and who shall be the head of the Department of Refugee Affairs.
(2) Without prejudice to the generality of subsection (1) the functions of the
Commissioner shall be to—
(a) act as secretary to the Committee;
(b) co-ordinate all measures necessary for promoting the welfare and
protection of refugees and advise the Minister thereon;
(c) formulate policy on refugee matters in accordance with international
standards;
(d) ensure, in liaison with the United Nations Agencies and any other
institutions, the provision of adequate facilities and services for the
protection, reception and care of refugees within Kenya;
Refugees
8. Establishment of Committee
(1) There is established a committee to be known as the Refugee Affairs Committee.
(2) The Committee shall assist the Commissioner in matters concerning the recognition of
persons as refugees for the purposes of this Act.
(3) The Committee shall consist of—
(a) the chairperson who shall be appointed by the Minister;
(b) one representative from the Ministry responsible for provincial
administration and internal security;
(c) one representative from the Ministry responsible for refugee affairs;
(d) one representative from the ministry responsible for foreign affairs;
(e) one representative from the Ministry responsible for local
government;
80
(f) a representative of the Attorney-General;
(g) one representative from the Ministry responsible for health;
(h) one representative of the Ministry responsible for finance or
planning;
(i) one representative from the Department of Immigration;
(j) one representative from the Department of Police;
(k) one representative from the National Security Intelligence Service;
and
(l) one representative from the Department of National Registration
Bureau.
(4) At least one third of the members of the Committee shall be women.
(5) The Committee shall include a representative from the host community
and one member from the civil society for the purpose of assisting and advising
the Committee.
9. Refugee Appeal Board
(1) There is established a Board to be known as the Refugee Appeal Board
to consider and decide appeals under this Act.
(2) The Appeal Board shall consist of—
(a) a chairperson who is an advocate of not less than ten years’ standing
appointed by the Minister;
(b) members appointed by the Minister from among persons having
knowledge of, or experience in—
(i) refugee law;
(ii) matters relating to immigration;
(iii) matters relating to foreign affairs;
(iv) matters relating to national security;
(v) matters relating to local administration;
(vi) matters relating to refugee affairs.
(3) All appointments to the Appeal Board shall be by name and by Gazette
Notice issued by the Minister.
81
(4) The Appeal Board shall be independent in the exercise of its functions
under this Act.
(5) A member of the Appeal Board shall hold office for a term of three years
and shall be eligible for re-appointment for one further term of four years.
(6) The provisions of the First Schedule shall have effect in relation to the
Appeal Board.
10. Appeals
(1) Any person aggrieved by a decision of the Commissioner under this Act
may, within thirty days of receiving the decision, appeal to the Appeal Board
against the decision.
(2) In any appeal under this Act, the Appeal Board may confirm or set aside
the decision of the Commissioner and shall cause the appellant concerned to be
notified of its decision in the matter in writing:
Provided that, before reaching a decision on any such appeal, the Appeal
Board may either—
(a) refer the matter to the Commissioner for further investigation and
advice; or
(b) make such further inquiry or investigation into the matter as it deems
necessary.
(3) Any person who is aggrieved by the decision of the Appeal Board may
within twenty one days appeal to the High Court.
11. Recognition of refugees
(1) Any person who has entered Kenya, whether lawfully or otherwise and wishes to remain
within Kenya as a refugee in terms of this Act shall make his intentions known by appearing in
person before the Commissioner immediately upon his entry or, in any case, within thirty days
after his entry into Kenya.
82
(2) In the case of a person who is lawfully in Kenya and is subsequently unable to return to his
country of origin for any of the reasons specified in section
3(1), he shall, prior to the expiration of his lawful stay, present himself before an appointed
officer and apply for recognition as a refugee in accordance with the provisions of this Act.
(3) Without prejudice to the provisions of this section, no person claiming to be a refugee within
the meaning of section 3(1) shall merely, by reason of illegal entry be declared a prohibited
immigrant, detained or penalized in any way save that any person, who after entering Kenya, or
who is within Kenya fails to comply with subsection (1) commits an offence and shall be liable
on conviction to a fine not exceeding twenty thousand shillings or to imprisonment for a term not
exceeding six months, or to both.
(4) Any appointed officer to whom an application is made under subsection
(1) shall, if he is not himself the Commissioner, refer the application to the
Commissioner.
(5) The Commissioner may consider all applications referred to him under subsection (4) within
ninety days’ of the application being so referred and may, within ninety days, make such inquiry
or investigation as he thinks necessary into any such application and shall call upon the applicant
to make an oral presentation.
(6) After considering the application referred to in subsection (4), the
Commissioner—
(a) shall either grant refugee status to the applicant or reject the
application; and
(b) shall, within fourteen days, notify the applicant concerned in writing
of the decision and in the case of a rejection the applicant shall be
informed of the reasons therefor.
12. Residence in Kenya pending recognition as refugee, etc.
(1) Notwithstanding the provisions of any other Law, any person who has
applied under section 11 for recognition of his status as a refugee and every
member of his family, may remain in Kenya—
(a) until such person has been recognized as a refugee in terms of that
section;
83
(b) in the event of the application of such person being rejected, until
such person has had an opportunity to exhaust his right of appeal;
(c) where such person has appealed and the appeal has been
unsuccessful, he shall be allowed reasonable time, not exceeding
ninety days, to seek admission to a country of his choice.
(2) The Commissioner may, on application made to him by the person
concerned, extend the ninety days period referred to in subsection (1)(c) if he is satisfied that
there is a reasonable likelihood of the person being admitted to a country of his choice within
such extended period.
13. Stay of proceedings
Notwithstanding the provisions of the Immigration Act (Cap. 172) or the Aliens Restriction Act
(Cap. 173), no proceedings shall be instituted against any person or any member of his family in
respect of his unlawful presence within Kenya—
(a) if such a person has made a bona fide application under section 11
for recognition as a refugee, until a decision has been made on the
application and, where appropriate, such person has had an
opportunity to exhaust his right of appeal under that section; or
(b) if such person has become a refugee.
14. Residence in Kenya
Every refugee and asylum seeker shall—
(a) be issued with a refugee identity card or pass in the prescribed form; and
(b) be permitted to remain in Kenya in accordance with the provisions of this Act.
15. Provisions relating to the families of refugees
(1) A member of the family of a refugee who has entered Kenya shall, subject
to subsection (3) and any other provisions of this Act—
(a) be issued with a refugee identity card in the prescribed form on
attaining the age of eighteen years;
(b) be issued with a refugee identification pass if below the age of
eighteen years; and
84
(c) subject to subsections (2) and (3), be permitted to remain within
Kenya for as long as the refugee concerned is permitted to so
remain:
Provided that such member of the family has not been excluded under
section 3(3).
(2) The Commissioner may grant permission to a dependent member of the family of a refugee
upon application to enter and reside in Kenya and such a member shall be entitled to the rights
and privileges specified in section 15 for such period as the refugee is entitled to remain in
Kenya.
(3) Upon the death of a refugee or upon the refugee’s divorce or legal separation from the
refugee’s spouse, every person who, immediately before such death, divorce or legal separation
was within Kenya as a member of the family of such refugee shall be permitted to continue to
remain in Kenya in accordance with the provisions of this Act.
(4) Nothing in this section shall prevent a member of the family of a refugee
or a person who has under subsection (2) been permitted to continue to remain
in Kenya from applying for recognition as a refugee under section 11.
16. Rights and duties of refugees in Kenya
(1) Subject to this Act, every recognized refugee and every member of his
family in Kenya—
(a) shall be entitled to the rights and be subject to the obligations
contained in the international conventions to which Kenya is party;
(b) 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—
(a) 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
(b) refugee camps.
(3) The designated areas provided for in subsection (2) shall be maintained
85
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.
17. Refugee Camp Officer
There shall be a refugee camp officer, for every refugee camp whose
functions shall be to—
(a) manage the refugee camp;
(b) receive and register all asylum seekers and submit to the
Committee all applications for the determination of their refugee
status;
(c) ensure refugees in the camps are issued with refugee identity cards
or refugee identification passes;
(d) manage the camps in an environmentally and hygienically sound manner;
(e) co-ordinate the provision of overall security, protection and assistance for refugees in the
camp;
(f) issue movement passes to refugees wishing to travel outside the camps; and
(g) protect and assist vulnerable groups, women and children; (h) ensure treatment of all asylum
seekers and refugees in compliance with national law.
18. Non-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—
(a) the person may be subject to persecution on account of race, religion, nationality,
membership of a particular social group or political opinion; or
(b) 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.
86
19. Commissioner 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.
20. Withdrawal of recognition of refugees
(1) If, at any time, the Commissioner considers that there are reasonable
grounds for believing that a person who has been recognized as a refugee for
the purposes of this Act—
(a) should not have been so recognized; or
(b) has ceased to be a refugee for the purposes of this Act,
the Commissioner shall revoke such recognition and shall notify the person
concerned in writing of the decision together with the reasons therefor.
(2) Where the Commissioner has under this section withdrawn the
recognition of any person as a refugee, that person shall cease to be a refugee
and any member of his family shall cease to be so recognized under this Act on
the expiration of seven days after the date on which the Commissioner notifies
the person concerned that his recognition has been withdrawn:
Provided that nothing in this subsection shall prevent a member of the
family of such a refugee from applying for recognition under section 11.
21. Expulsion of refugees and members of their families
(1) Subject to section 18(1) and subsection (2) of this section, the Minister
may, after consultation with the Minister responsible for matters relating to
immigration and internal security, order the expulsion from Kenya of any refugee
or member of his family if the Minister considers the expulsion to be necessary on the grounds of
national security or public order.
(2) Before ordering the expulsion from Kenya of any refugee or member of
his family in terms of subsection (1) of this section, the Minister shall act in
accordance with the due process of law.
22. Appointed officers
(1) The Minister may by notice in the Gazette appoint appointed officers for
87
the purposes of this Act.
(2) An appointed officer may, for the purposes of exercising his powers and
carrying out his duties under this Act—
(a) subject to subsections (3) and (4), search any person or property;
(b) take the finger-prints, foot-prints, photographs, x-rays and other
electromagnetic ray photographs of any refugee or member of his
family or any person who claims to be a refugee for the purposes of
this Act or any member of the family of such person; or
(c) question any refugee or member of his family or any person who
claims to be a refugee for the purposes of this Act or any member of
the family of such person.
(3) No search of any person or property shall be conducted in terms of
subsection (2)(a) unless the appointed officer concerned has reasonable grounds
for believing that the search is necessary for the prevention, investigation or
detection of—
(a) a contravention of the provisions of this Act; or
(b) a fraudulent statement or concealment by a refugee, member of his
family or person claiming to be a refugee for the purposes of this Act
or any member of the family of such a person, of any fact relevant to
his identity or status.
(4) Whenever it is necessary to cause a refugee to be searched, the search
shall be made by an appointed officer of the same sex who, in conducting the
search, shall have strict regard to decency:
Provided that where an appointed officer of the same sex as the refugee to
be searched cannot be found, the search may be conducted by another person
of the same sex notwithstanding that that other person is not an appointed
officer.
23. Refugee women and children
(1) The Commissioner shall ensure that specific measures are taken to
ensure the safety of refugee women and children in designated areas.
88
(2) The Commissioner shall ensure that a child who is in need of refugee
status or who is considered a refugee shall, whether unaccompanied or
accompanied by his parents or by any other person, receive appropriate
protection and assistance.
(3) The Commissioner shall, as far as possible, assist such a child to trace
the parents or other members of the family of the refugee child in order to obtain information
necessary for the reunification of the child with the child’s family.
(4) Where the parents of the child or other members of the child’s family
cannot be found, the child shall be accorded the same protection as any other
child permanently or temporarily deprived of his family.
24. Confidentiality
(1) No member of the Committee, employee or agent of the Department of
Refugees shall disclose information acquired under this Act except—
(a) in the course of his duties under this Act; or
(b) with the consent of the Commissioner.
(2) No person who receives information in contravention of subsection (1) shall disclose or
publish the information.
(3) A person who contravenes any provision of this section 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 both such fine and imprisonment.
25. Offences
Any person who—
(a) is unlawfully in Kenya in contravention of this Act;
(b) makes any false declaration or statement to an appointed officer;
(c) knowingly misleads any appointed officer seeking information
material to the exercise of any of his powers under this Act;
(d) 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;
89
(e) 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
(f) resides without authority outside the designated areas specified
under section 15(2),
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.
26. Regulations
(1) The Minister may make Regulations generally for the better carrying out
of the provisions of this Act.
(2) Without prejudice to the generality of subsection (1) Regulations made
under this section may provide for the—
(a) manner and form in which appeals may be made to the Appeals
Board;
(b) assignment to the Commissioner of functions relating to the
investigation, inspection and supervision of the reception, treatment
and welfare of refugees;
(c) formation of committees and the assignment to such committees of
functions to be exercised, subject to the direction and control of the
Commissioner or any such committee in relation to the reception,
treatment and welfare of refugees;
(d) procedure to be followed in applications for recognition of refugee
status and the form in which such applications shall be made;
(e) procedure to be followed in the expulsion of refugees;
(f) form and issue of identification and travel documents to refugees
and members of their families;
(g) form and issue of identification documents to persons awaiting
determination of their status;
(h) control and regulation of persons who may be required to live within
a designated place or area;
90
(i) form of any order or notice required to be served on any person
under section 19 and the manner in which such order or notice may
be served; or (j) protection of women, children, unaccompanied minors, persons with
disabilities and other disadvantaged groups.
91
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