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FORUM: UNHCR refugee status determination: The Kenyan experience

November 13, 2005

The opinions expressed here may not represent the views of RSDWatch or Asylum Access, and are distributed here in the interests of public discussion.

The Refugee Consortium of Kenya issued this report during the UNHCR Executive Committee (EXCOM) meetings in Geneva in October 2005.

Introduction

Ideally, states have a responsibility to decide whom they want to recognise as refugees and thus grant refugee status. UNHCR should only sit in as an observer and monitor the application of the set standards in refugee status determination procedures.

This has however not been the case as a good number of States have not yet taken up this responsibility.

In such circumstances, UNHCR has had to step in and take up this important responsibility of carrying out refugee status determination.

The Kenyan Experience

Kenya is a typical country in which UNHCR has taken up the responsibility of granting refugee status, under its international mandate of protection in the absence of the government’s participation in the same. Before 1998 the Kenyan government had an established refugee status determination process, and refugees who qualified were granted refugee status in accordance with the statutes of the 1951 Convention related to the status of Refugees. However, due to the large influx of refugees in the country in the early 1990s the government’s capacity to interview large numbers of refugees was challenged, and UNHCR had to step in. Since then, it has been involved in the process while the government has taken a back seat.

The current practice is that the UNHCR carries out RSD and those asylum seekers who meet the criteria set out are granted  ‘Mandate Status’  under UNHCR’s international mandate for protection. This mandate status does not accord refugees full status and rights as stipulated in the 1951 Convention or the 1969 OAU Convention on the status of refugees.

Upon entry into the country, asylum seekers approach the UNHCR on advice from other asylum seekers, refugees, or NGOs like the Refugee Consortium of Kenya (RCK).

They are registered and either given ‘movement passes’ to proceed to the camps for registration and RSD at the camp level, or are given appointment slips  which allows them to undertake an RSD interview in Nairobi. In both cases, between 2-16 appointments may be issued in a span of 6 months to one year before the RSD is finally conducted. Only in special circumstances are cases ‘fast tracked’ and the interview conducted on a priority basis, like for example in case of high insecurity situations.

The RSD interview is conducted by a UNHCR officer who prepares the case summary and presents it to a panel of 3 other UNHCR officers for assessment and to grant mandate if the asylum-seeker so deserves.  Refugees are not represented by an advocate in this process. However, in isolated cases, and upon request by the asylum-seekers through NGOs like the Refugee Consortium of Kenya, an advocate may be allowed to sit in during the interview, but only as an observer to watch.

Upon successful interviews, the decision takes about 6 months to be processed, including compiling country of origin information and due to shortage of staff in both the camps and Nairobi.

If the asylum application is rejected, the asylum seeker is informed in writing of this decision. He or she is also notified of the option of appeal, which has to be written down within one month after the he is given the rejection letter. The appeal interview is conducted by another UNHCR officer and considered by a different panel. If the appeal is rejected, the asylum seeker may request a case review, which is granted on very rare cases and involves counter checking whether the RSD procedures were duly followed. Rarely are Asylum Seeker called for another interview during the review stage.  After the review, the decision is final, and in case an asylum seeker still feels that he has valid grounds to be considered for asylum or unfairly rejected, there is no further independent body to which the refugee can seek relief.

Rejection letters are usually presented in ambiguous terms like ‘lack of credibility’ or ‘material inconsistency’ without substantive explanations. Once rejected, the asylum seeker is not informed of other options that may be available nor is the decision communicated to the government.  The asylum seeker is left at the mercy of the state, which views such ‘rejectees’ as unlawfully present in Kenya.

In regard to provision of information relevant to the process, the current practice in Kenya is that whereas refugees are required to reveal all information that may be relevant to the granting of asylum, UNHCR does not on a reciprocal basis provide information that may eventually determine the refugee’s claim even to the advocate representing the asylum-seeker. UNHCR says that this is due to requirements of “confidentiality.”

The process itself takes a long period from the time of registration to the time the interview is conducted and a decision finally given, yet in the meantime the asylum seekers remain very vulnerable to arrests, harassment and deportation as illegal aliens. Further, some asylum seekers are not provided with assistance as they await the decision.

The RSD process takes up a lot of time and resources from UNHCR in Kenya This may and can seriously affect the effectiveness/quality of the process as well as compromise UNHCR’s mandate  for protection.

Recommendations

Granted, many states fail to take up their RSD responsibility for lack of a legal framework on refugees’ issues. It is pertinent that both the UNHCR and the NGOs work closely with states to develop legal regimes on refugee and asylum matters where none exist, while clearly laying down the state responsibilities in the RSD process.

In keeping with the need to achieve and improve quality and consistency of the UNHCR’s Refugee Status Procedures, the UNHCR must be seen as the first to comply with and respect its own ‘Procedural Standards for Refugee Status Determination’.

UNHCR is urged to open up space for purposes of ensuring a just RSD process as structures and mechanisms for states to take up responsibility are put in place. This could be by, for instance, embracing the right of legal representation and facilitating independent appeals by allowing the participation of interested NGOs. The following benefits would accrue: Providing a more transparent process, minimizing the risk of error in RSD decisions, having a clear mechanism for independent appeal to lessen burden on UNHCR through sharing responsibility, promoting cost effectiveness as local organisations would work with refugees to advocate for states to take up responsibilities.

As the process of seeking asylum is a long process, the issuance of an ‘asylum seeker’s certificate’ should be considered as standard practice to act as a means of identification as such asylum seekers await to go through RSD. This would protect many asylum seekers who in the intervening period suffer under immigration and police authorities.

Finally, the role of NGOs in continuously advocating for adherence to the standards, either by states or by UNHCR branch offices is critical in ensuring that refugees are guaranteed access to seeking asylum through a fair RSD process.

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