Who is a refugee?

According to the Geneva Refugee convention adopted on 28 of July 1951, a refugee is someone who:

"…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside 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 who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

According to The Refugees Act 2006 of Kenya:

“A person shall be a statutory refugee … if such person, 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 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 [above] reasons is unwilling to return to it.”

 This means a refugee is a person who:

1.       has been forced to flee their country and has entered Kenya; and

2.       they have fled because of a real and genuine fear that they are in danger of serious harm or persecution; and

3.       this harm or persecution has arisen because of their race, religion, sex, nationality, political opinion or because they belong to a particular group that has been targeted; and

4.       because of this fear they are not able to go back to their own country or the country where they usually live where the problems arose.

5.       When there is a situation of war, clashes, invasion by outside forces, or other events that seriously disturb the public peace and order in the country, it may cause people to flee from their countries and they may arrive in Kenya in large numbers. In such a case, the Minister responsible for refugee affairs can announce such a group to be refugees. This group is called “prima facie” refugees.

In summary: A refugee in Kenya is a person who, because they cannot find safety in their own country or the country where they had been living, is granted protection in Kenya by the Government (until a long-lasting solution is found).

Who is an asylum seeker?

1.       An asylum seeker is a person who has arrived in Kenya to seek protection, and is in the process of having his/her application for refugee status assessed.

2.       The Act gives Kenya the authority to give or refuse refugee status to a person who applies for protection.

3.       It is important to remember that an asylum seeker has permission to remain in the country until the assessment of his/her case is finalized.

Who is a Returnee?

A returnee is a person who has been displaced under different circumstances and who voluntarily agrees return to his/her own country.

 

Statistics for Kenya

 

Who is responsible?

Under the Refugee Act 2006, the Government of Kenya, more specifically the Department for Refugee Affairs (DRA) under the Ministry of Immigration and Registration of Persons has the overall responsibility for all administration, coordination and management of refugee matters.  The DRA is headed by Commissioner, Mr. Peter Kusimba. The Government of Kenya has directed that refugees must reside in designated camps to qualify for assistance. Kenya considers itself as only a country of asylum for as long as a refugee has a mandate or is in the process of acquiring or renewing one.

Under international law it is the responsibility of UNHCR to supervise the implementation of the 1951 Convention and monitor the protection of refugees. UNHCR took over the responsibility of refugee affairs management and RSD in 1992 from the Kenyan government following the continued increase and influx of refugees.

United Nations Convention Relating to the Status of Refugees (1951) Universal Declaration of Human Rights Geneva Convention (1949) Geneva Convention Protocol (1949) Convention on the Rights of the Child Guide to International Refugee Law

a list of relevant downloads

Legal instruments guiding the work with refugees, returnees and asylum seekers

There are a number of legal frameworks guiding the work around refugees, returnees and asylum seekers.

 

 

At the International level the United Nations Convention Relating to the status of Refugees is the cornerstone in the body of laws that establish standards for refugee protection. It is an international convention defining who is a refugee, setting out the rights of individuals who are granted asylum as well as the responsibilities of nations that grant asylum.

The convention was approved by the United Nations at a conference in 1951. Initially, it was limited to post-World War ll refugees, but in 1967 it was expanded to encompass refugees internationally. The 1967 of the Convention was ratified in Geneva and is therefore often referred to as "the Geneva Convention", though it is not one of the Geneva Conventions specifically dealing with permissible behavior in times of war.

Today there are 147 signatories to the 1967 Convention Relating to the status of Refugees. 

At the National level a Refugee Act was approved by the Kenyan parliament in 2006 and it:

• Establishes legal authority for managing refugee affairs – taking precedence over the Immigration Act and the Aliens Restriction Act on refugee matters
• Creates an institutional framework – creates relevant offices (Commissioner, Department, camp officer, etc)
• Formalizes administrative processes – how to seek asylum, appeal, search, etc
• Formalizes refugee management as a function of the government.

 

Milestones in the management of refugees in Kenya

1984	•          The idea of a refugee law is formally proposed at the government level. Kenya is continuing to experience an influx of refugees from Uganda. •          The Government is responsible for Refugee Status Determination (RSD) through the Refugee Secretariat under the Ministry of Home Affairs.
By end 1990	•          Kenya's refugee population is recorded at 14,400 refugees. •          UNHCR budget for Kenya is USD 2.7 Million
By June 1991	•          13,000 Ethiopian refugees arrive in Kenya, following the overthrow of Mengistu Haile Mariam and the ensuing conflict. •          A draft Refugee Bill is prepared in 1991 •          Refugee camps established in o   Kakuma in the Rift Valley Province o   Mandera in NorthEastern Kenya o   Utange in the Coastal region for Somali refugees Making encampment the official government refugee management policy.
By April 1992	•          46,500 Ethiopian refugees have arrived in Kenya with an estimated 1000 crossing over daily •          123,000 Somalis arrive in Kenya following the ouster of President Siad Barre, with an estimated 3,000 crossing over daily. •          A small refugee camp is established in Dadaab in North Eastern Kenya
By Dec 1992	•          The refugee population in Kenya is estimated at over 287,000 refugees with a continuing increase. The increase is 2000 percent within 2 years. •          UNHCR budget for Kenya increases from USD 2.7 Million to USD 45.3 Million •          Kenya is also experiencing a problem with IDPs because of land clashes in various parts of the country. •          Kenya is changing from single party to multiparty state
1992 (continued)	•          Economic hard times – inflation rises by more than 50% •          There is a sharp increase in crime and illegal arms into the country. Refugees and foreigners are blamed for this. •          The Govt hands over the responsibility for refugee status determination and management to UNHCR.
1994	•          The Government, NGOs and UN agencies review the 1991 draft refugee law but the final product is unacceptable to both sides and the Bill is shelved.
1995-1997	s  Camps in urban areas are gradually closed down and they are amalgamated to Dadaab and Kakuma refugee camps which become bigger camps. s  Dadaab and Kakuma remain the only two refugee camps
1999	•          The government holds wider consultations with civil society actors including RCK and other NGOs; and the Bill is revised, becoming the Refugee Bill 2000.
2000-2002	•          The Refugee Bill is reviewed at least 3 times but it is not published in the Kenya Gazette
2003	•          Kenya’s new political regime after KANU is ousted in national elections. •          The Government, RCK, NGOs and UN agencies review the Refugee Bill 2000 and make recommendations. The Bill is published as the Refugee Bill 2003 •          The Bill is introduced to Parliament for the first time in 12-years, but the Bill lapses at the end of the year when Parliament closes for the year.
2005	•          The Refugee Affairs Secretariat is revived. By the end of the year, the Secretariat is made a department within the Ministry of State for Immigration &Registration of Persons
2006	•          New influxes of refugees from Somalia •          The Refugee Bill is re-published (after its expiry in 2003) and becomes the Refugee Bill 2006 •          RCK leads other organizations to advocate for Refugee Law. •          The Refugee Bill is introduced to Parliament for the second time. (15 years since it was first drafted). •          On November 29, the Bill is unanimously voted into law and receives presidential assent on December 30th.
2007	•          May 15th the Refugee Act is gazetted to commence. The Act is now an operational law that can be used in court. •          Dec 07- appointment of the first Commissioner for refugee affairs

 The status determination process (RSD)

Refugee Status Determination (RSD) is the process used to determine whether an individual asylum-seeker meets the international legal definition of a refugee qualifying for protection and assistance by the international community.

In Kenya, the process is carried out by UNHCR on behalf of the Government. RCK is not involved in RSD, but it offers consultation services to asylum seekers who wish to be guided in the presentation of their claims to UNHCR.

In Kenya the process is carried out the following way:

• Applicants for refugee status are interviewed solely by UNHCR. Upon entry into the country, asylum seekers approach UNHCR on advice by other asylum seekers, refugees, or NGO's like RCK.
• UNHCR usually gives the asylum seekers 'Movement Passes' to proceed to the camp for registration and RSD at the camp level, gives them appointment slips to attend RSD at Nairobi but only if there are adequate and compelling reasons to conduct RSD in Nairobi. In either of the cases, 2-16 appointments may be issued in a span of 6 months-1year before RSD is finally conducted. Only on special circumstances are cases 'fast tracked' and the interview conducted on a priority basis such as with high profile insecurity situations.
• The interview is eventually conducted by a UNHCR officer who keys in the information. The interview takes 1-3 hours. No external lawyer is normally present to represent the asylum seekers. Upon request by asylum seekers through NGO'S like RCK, a lawyer may sit in during the interview, but only as an observer. (RCK has been consistent in advocating for the right to full legal representation of asylum seekers by Advocates in the RSD process).
• The file is then assessed by a panel of 3 other UNHCR officers who give a decision, which takes a maximum of 6 months to deliver. This may however take longer in some cases, particularly if the need to confirm country of origin information arises.
• If one is successful, he/she is issued with a Protection Certificate (Mandate) which is the legal document that shows a person has 'Refugee Status'. The document is issued under UNHCR's international mandate for the protection of refugees and asylum seekers.

Link to a description of Refugee Status Determination, DRA

In 2010 the government of Kenya initiated a project to have all refugees in both Dadaab and kakuma refugee camps and Nairobi registered and issued with refugee identity cards. The IDs will contain the government seal, which the police have been asking for when they encounter the refugees.  All refugees who are registered get an identification card that is similar to the Kenyan national identity card but with a different color scheme and a refugee inscription on it. The Refugee Identity cards are valid for a five years period.

Link to some example identification documents, DRA -

 Are you new in Kenya?

• Report to UNHCR offices in Nairobi as soon as possible. Their offices are located in the Westlands area of the city.
• You and your other family members will be photographed and given a document by UNHCR known as a movement pass. This document is valid for 30 days during which time you are required to travel to either Kakuma or Dadaab refugee camps for registration.
• When you get to the camp, present your movement pass and you will be notified by a UNHCR officer, the date of your refugee status determination interview.
• As your claim for status determination is being processed, you will be issued with a ration card and number. The card is used to get food rations at the camp.
• For further information on procedures and policies related to refugees in Kenya, please contact us.