RSD is the legal or administrative process by which governments or the United Nations High Commissioner for Refugees (UNHCR) determine whether a person seeking international protection qualifies to be declared a refugee under international, regional or national law. States have the primary responsibility for conducting RSD, but UNHCR may do so where states are unable or unwilling. The RSD process in Kenya is very similar to that of South Africa. This process is outlined in the Refugees (Reception, Registration and Adjudication) Regulations, 2009 (just Refugees Regulations, 2009 for the purposes of this essay). The Refugees Regulations, 2009 is a subsidiary legislation of the Refugees Act 2006.
CONTENT
Refugee Status Determination (RSD) in Kenya
Introduction to RSD
RSD Process in Kenya
Asylum Seeker’s Narrative
Applicable Rules
RSD Officer Deliberations
Conclusions and Recommendations
Bibliography
Refugee Status Determination (RSD) in Kenya
Introduction to RSD
RSD is the legal or administrative process by which governments or the United Nations High Commissioner for Refugees (UNHCR) determine whether a person seeking international protection qualifies to be declared a refugee under international, regional or national law. States have the primary responsibility for conducting RSD, but UNHCR may do so where states are unable or unwilling.
The RSD process in Kenya is outlined in the Refugees (Reception, Registration and Adjudication) Regulations, 2009 (just Refugees Regulations, 2009 for the purposes of this essay). The Refugees Regulations, 2009 is a subsidiary legislation of the Refugees Act 2006.
RSD Process in Kenya
The RSD process in Kenya is very similar to that of South Africa. It begins when an appointed officer 1 receives an asylum seeker who entered Kenya, whether lawfully or otherwise, and then directing him to the nearest reception centre.2 If such an asylum seeker wishes to remain within Kenya as a refugee, he will be required to present himself before a registration officer 3 and apply to be recognized as a refugee within 30 days of his entry into Kenya.4 Any person who fails to do so commits an offence and shall be liable on conviction to a fine not exceeding KES 20,000 or to imprisonment for a term not exceeding six months, or to both.5
In Rada Haile & Another v R (2012) , the applicants did not immediately upon their entry or within 30 days after entry into Kenya make their intention known to an Immigration Officer at their point of entry. Having therefore pleaded guilty to the charge of being present in Kenya unlawfully, the applicants were properly convicted and fined a sum of KES 20,000. They had applied to the High Court for revision of both their conviction and sentence. The prosecution was silent on when the applicants had entered Kenya. Judge James Aaron Makau set them free, and ordered that they be released to the UNHCR and/or the Department of Refugee Affairs. They were to remain in Kenya for 90 days to enable them make their intention of staying in Kenya known in accordance with the law.6
The registration officer then fills in the asylum seeker’s information in a registration form (Form 1 set out in the Schedule), completed in triplicates; before issuing him with a pass 7 set out in Form 2 in the Schedule.8 An image of an unsigned and unstamped copy of the pass is captured in Figure 1.
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Figure 1 Asylum Seeker Pass
The registration officer verbally notifies the asylum seeker of the conditions of the pass and the requirement of appearing on the return date specified on the pass.9 The pass – signed by both the registration officer and the asylum seeker and bearing an official stamp of the Refugee Department – is valid for one year from the date of issuance, or until a final determination of the asylum appli cation, whichever comes first.10
The asylum application is then forwarded to the Commissioner 11 who is required to make a determination within 90 days of it being referred to him. To do so, the Commissioner may make such inquiries or investigations as he thinks necessary and may even require an asylum seeker to appear before him for an interview.12
The Commissioner may withdraw the pass if, in the event of his inquiries or investigations, determines that the applicant no longer qualifies for recognition as a refugee or is a combatant.13 Failure to comply with any condition specified in the pass, without just cause, may also constitute ground for its withdrawal.14
If the Commissioner is satisfied that the asylum seeker is genuine, he – either personally or through the Committee 15 - informs the asylum seeker of the RSD centre where he shall present himself for determination of his asylum application. He then forwards the asylum application from the registration centre to the appropriate RSD centre.16
On presenting himself at the RSD facility, the asylum seeker is interviewed by an RSD officer 17. It is incumbent upon the Commissioner to ensure that the facilities used for the RSD procedures preserve the right of asylum seekers to confidentiality and that the rooms used to conduct interviews allow asylum seekers to communicate with an appointed officer in private.18 He is also responsible for putting the mechanism used in conducting such interviews.19
At the RSD interview, the asylum seeker may:
1) present his refugee claims in person; or
2) be represented at his own cost by a legal representative.
Those who have representatives are required to sign an authorization form (Form 5 set out in the Schedule) indicating the person authorized to act as their legal representative.20
The requirements and manner in which the RSD hearing is to be conducted are outlined from Sec 18 to 30 (the Adjudication Process) of the Refugees Regulations, 2009. That said, the onus of establishing whether an asylum seeker is indeed a refugee, as defined in section 3 of the Refugee Act, lies with the asylum seeker himself. Even so, in the absence of documentary evidence, the credible testimony of an asylum seeker in consideration of conditions in his country of origin may suffice to establish eligibility for refugee status.21
At the conclusion of the initial interview, the RSD officer shall advise the asylum seeker of the date and time he should return in order to receive the decision on his application.22
RSD officers are required to determine the eligibility of an asylum seeker, for the purposes of granting him refugee status, on a case by case basis, taking into account the specific facts of the case and conditions in the country of origin. In making a determination on eligibility, an RSD officer may:
1) request further information or clarification from the asylum seeker and/or;
2) consult with the UNHCR.23
An asylum seeker whose claim for asylum has given rise to an exclusion examination 24 shall be informed of the exclusion examination and be given an opportunity to respond.25 Nevertheless, such a person retains the right to appeal the RSD officer’s decision to the Refugee Appeal Board.26
After completing the RSD interview, the RSD officer is required to submit a written recommendation to the Commissioner who then makes a decision based on these recommendations within 90 days.27 The Commissioner’s decision can be either a:
1) rejection or;
2) approval of an application for refugee status.
In both instances, the Commissioner is required to notify the asylum seeker of his decision, in writing, within 14 days of the determination, giving reasons if the application is rejected.28 An asylum seeker granted refugee status is issued with an identity document.29
A person aggrieved by the Commissioner’s decision may within 30 days of receiving it lodge an appeal with the Refugee Appeal Board.30 The Appeal Board may then either choose to:
1) refer the matter to the Commissioner for further investigation and advice or;
2) make such further inquiry or investigation into the matter as it deems necessary.
Acting with independence in the exercise of its functions under the Refugee Act 2006, the Appeal Board may reach either one of two decisions:
1) confirm or;
2) set aside the Commissioner’s decision.
Either way, the Appeal Board shall then cause the appellant concerned to be notified of its decision in the matter in writing.31 Any person who is aggrieved by the decision of the Appeal Board may appeal its decision to the High Court within 21 days.32
The following is a brief (fictional) narrative of an asylum seeker, appearing before an RSD officer. The asylum seeker, Babu, wishes that he and his daughter, Kafirifiri, be granted refugee status in Kenya. It is upon the RSD officer to determine whether Babu qualifies to be regarded as such or not.
Asylum Seeker’s Narrative
My name is Babu Wine Kyagulani from Uganda. My mother, Okoti Oduma came from the shores of Kadimu, Yimbo, Central Nyanza, Kenya. She’s the first among my father’s seven wives. I was born on new year’s eve in 1972 and I am the eldest among an extended family of 27 siblings. I am my mother’s only child. I am here today with my last born daughter, Sinthia Liet Kafirifiri. Her mother is Sarai Tinga Wine, my second and last wife.
I flew to London three days ago and as soon as I switched on my iPhone X on arrival, I was bombarded with a barrage of messages and missed call notifications. I found this to be odd, even for a Presidential contestant like myself. Anyway, before I could make sense of what the buzz was all about, a call came in, from Akude Opiyo Jua, my shamba boy, whom I had discharged from service, via SMS, as I boarded my flight that morning.
On picking up, he was mumbling and rumbling, hysterically if I may add. I couldn’t understand a thing he was saying so I decided to give him a thorough tongue lashing: explaining to him that it was his gross misconduct and insubordination that had cost him his job. To my dismay, Opiyo informed me that he hadn’t called to plead for his job back, instead, he’d called to inform me that he had managed to rescue my Kafirifiri. “From what?” I asked, and that’s when all hell broke loose.
As it so happened, that evening, on the day that I left for the UK, armed men, dressed up in full military regalia, arrived at my residence in three lorries bearing government number plates. They rounded up everyone and demanded to know where I was. My elderly mother informed them that I had travelled to the UK for her granddaughter’s graduation. You see, my eldest daughter, Barafu Jaber nyar Babu, had just graduated with her PhD in Dramaturgy from The University of Oxford.
They shot my mother dead on the spot, apparently, for lying! Trailing their guns at my Sarai, they asked again. She fainted. The sight of blood and guns terrify her senseless. One by one they asked, and one by one they shot. In a span of less than half an hour, nine were dead. They then moved on to shoot at the livestock and anything that moved. Done, they torched everything else to the ground. Two Range Rovers, A Porsche Cayenne, and a Volkswagen Passat gone, just like that. They then drove off with my Sarai.
Opiyo wasn’t at the residence at the time, thanks to my firing him. I have yet to establish how he managed to rescue my Kafirifiri.
I flew back as soon as I hang up, leaving behind Barafu’s mother and her younger sister in the UK. The two had accompanied me on the trip. I landed in Kisumu and was reunited with my daughter, whom Opiyo had somehow managed to smuggle via Lake Victoria.
I am here, in Kenya, seeking protection, for my family and myself. I have tried to go back but have been barred from doing so. My own government has even revoked my citizenship. They say I was plotting to oust Museveni and was in the UK to secure support from the West. The public has also vowed to lynch my second daughter, Tabi Rita Wine, if she ever sets foot back home. She’s a practicing advocate in Uganda and has been vocal in campaigning for a repeal of the Anti-Homosexuality Act.
[...]
1 “appointed officer’ means an officer in the public service gazetted by the Minister for the purpose of this Act (Sec 2, Refugees Regulations, 2009).
2 Sec 3, Refugees Regulations, 2009.
3 “registration officer” means an officer designated to register asylum seeker (Sec 2, Refugees Regulations, 2009). The duties of a registration officer are found under Sec 10, Refugees Regulations, 2009.
4 Sec 4(1) and 2(b), Refugees Regulations, 2009.
5 Sec 11(3), Refugees Act, 2006.
6 Rada Haile & Another v R (2012)eKLR.
7 “pass” means an asylum seeker’s pass issued under regulation 13 (Sec 2, Refugees Regulations, 2009).
8 Sec 4(2), (3), (5), and 10(e) Refugees Regulations, 2009.
9 Sec 10(1)(c)(iii), Refugees Regulations, 2009.
10 Sec 4(1), 10(f), and 13(3) Refugees Regulations, 2009.
11 “Commissioner” means the Commissioner for refugee affairs appointed under sec 7 (Sec 2, Refugee Act 2006).
12 Sec 18(1) and (2), Refugees Regulations, 2009.
13 Sec 14(2)(c) and (d), Refugees Regulations, 2009; Sec 4 and 5, Refugees Act, 2006.
14 Sec 14(1), Refugees Regulations, 2009.
15 “Committee” means the Refugee Affairs Committee established under sec 8 (Sec 2, Refugee Act 2006).
16 Sec 4(6) and (7), Refugees Regulations, 2009.
17 “refugee status determination officer” means an officer designated to conduct refugee status determination (Sec 2, Refugees Regulations, 2009).
18 Sec 19(1)(a), Refugees Regulations, 2009.
19 Sec 18(3)(b), Refugees Regulations, 2009.
20 Sec 20, Refugees Regulations, 2009.
21 Sec 22, Refugees Regulations, 2009.
22 Sec 21(10), Refugees Regulations, 2009.
23 Sec 23(1) and (2), Refugees Regulations, 2009.
24 An exclusion examination applies to prima facie refugees. The CS responsible for Refugee Affairs may at any time consider that any class of persons are prima facie refugees as defined in Sec 3(2) of the Refugees Act 2006. He may also amend or revoke such declaration at any time. When the CS expressly excludes certain persons from a preexisting class of prima facie refugees, those applying to be considered as prima facie refugees under such a class are not precluded from applying to be considered as a prima facie refugee. Instead, they are subjected to the exclusion examination.
25 Sec 28(2), Refugees Regulations, 2009.
26 Sec 28(3), Refugees Regulations, 2009.
27 Sec 29(2), Refugees Regulations, 2009.
28 Sec 23(3), (4) and 29 Refugees Regulations, 2009.
29 Sec 31, Refugees Regulations, 2009.
30 Sec 10(1), Refugees Act, 2006.
31 Sec 10(2), Refugees Act, 2006.
32 Sec 10(3), Refugees Act, 2006.
- Quote paper
- B. W. Namano (Author), 2020, Refugee Status Determination (RSD) in Kenya, Munich, GRIN Verlag, https://www.grin.com/document/981205
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Upload your own papers! Earn money and win an iPhone X. -
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Upload your own papers! Earn money and win an iPhone X. -
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