Refugees Act

Section 1. Short title Section This Act shall be cited as the Refugees Act.

Section 2. Interpretation Section any spouse of the refugee;

Section 3. Meaning of "refugee" Section 3(1)(a) being outside of his or her country of nationality and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion who is in Kenya and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of his or country of nationality or the country of habitual residence; Section 3(1)(b) not having a nationality and being outside the country of his or her former habitual residence owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, who is in Kenya and is unable or, owing to such fear, unwilling to return to the country of his or her habitual residence; Section 3(1)(c) owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or whole of his or her country of origin or nationality is compelled to leave his or her place of habitual residence in order to seek refuge in another place outside his or her country of origin or nationality; or Section 3(1)(d) the...

Section 4. Exclusion and disqualification from refugee status Section 4(1)(a) has committed a crime against peace, a war crime or a crime against humanity referred to in any international instrument to which Kenya is a party; Section 4(1)(b) has committed a serious non-political crime outside Kenya prior to his or her admission to Kenya as a refugee; Section 4(1)(c) has been guilty of acts contrary to the purposes and principles of the United Nations and the African Union; or Section 4(1)(d) is determined to be a threat to national security. Section 4(2)(a) having more than one nationality, has not availed himself or herself for protection of one of the countries which he or she is a national and has no valid fear based on well-founded fear of persecution; Section 4(2)(b) has sought asylum in another country or has been granted refugee status in another country prior to entry in Kenya and can be re-admitted to that country and benefit currently and in the future in that country from effective protection; or Section 4(2)(c) is recognized by competent authorities of the country he or she has taken residence as having the rights and obligations which are attached to the possession of...

Section 5. Cessation of refugee status Section voluntarily re-avails himself or herself of the protection of the country of his or her nationality;

Section 6. Administrative institutions Section the Department of Refugee Services;

Section 7. Department of Refugee Services Section 7(1) There is established a Department known as the Department of Refugee Services which shall be an office in the public service. Section 7(2)(a) be responsible for all administrative matters concerning asylum seekers and refugees in Kenya; Section 7(2)(b) co-ordinate activities and programmes relating to asylum seekers and refugees; and Section 7(2)(c) handle all operational aspects of protection and assistance of refugees. Section 7(3) The Government shall ensure that the Department is comprised of relevant officers with the requisite expertise necessary to assist the Commissioner in the performance of his/her duties.

Section 8. Commissioner for Refugee Affairs Section 8(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. Section 8(2)(a) convene and chair the Refugee Advisory Committee; Section 8(2)(b) receive, register and maintain a register for all refugees in Kenya; Section 8(2)(c) receive and process applications for refugee status; Section 8(2)(d) issue refugee identification documents and facilitate issuance of civil registration and other relevant documentation by other government agencies; Section 8(2)(e) co-ordinate all measures necessary for promoting the welfare and protection of refugees and asylum seekers and advise the Cabinet Secretary and the Committee thereon; Section 8(2)(f) ensure in liaison with other relevant agencies the provision of adequate facilities and services for the protection, reception and care of asylum seekers and refugees within Kenya; Section 8(2)(g) promote as far as possible durable solutions for refugees granted asylum in Kenya; Section 8(2)(h) be the liaison between the department, state actors and relevant stakeholders and shall in that capacity, sensitize...

Section 9. The Refugee Advisory Committee Section 9(1)(a) the Commissioner who shall be the chairperson and who shall provide secretariat services to the Committee; Section 9(1)(b) the Principal Secretary from the Ministry responsible for refugee affairs or a representative nominated, in writing, from the Ministry responsible for refugee affairs; Section 9(1)(c) the Principal Secretary or a representative nominated, in writing, from the Ministry responsible for foreign affairs; Section 9(1)(d) the Principal Secretary or a representative nominated, in writing, from the Ministry responsible for devolution affairs; Section 9(1)(e) the Principal Secretary or a representative nominated, in writing, from the Ministry responsible for health; Section 9(1)(f) the Principal Secretary or a representative nominated, in writing, from the Ministry responsible for finance; Section 9(1)(g) the Principal Secretary or a representative nominated, in writing, from the Ministry responsible for education; Section 9(1)(h) the Attorney-General or a representative nominated in writing; Section 9(1)(i) the Director of the Department of Immigration or a representative nominated in writing; Section 9(1)(j) th...

Section 10. Functions of the Committee Section advise the Cabinet secretary on formulation of national policies on matters relating to refugees in accordance with international standards;

Section 11. Refugee Status Appeals Committee Section 11(1) There is established a committee to be known as a Refugee Status Appeals Committee. Section 11(2)(a) a representative of the Principal secretary responsible for refugee matters who shall be the chairperson of the Committee; Section 11(2)(b) a representative of the Kenya National Commission for Human Rights; Section 11(2)(c) a representative of the State Department responsible for Immigration; Section 11(2)(d) one person nominated by the Attorney General; and Section 11(2)(e) three other persons with knowledge and experience in refugee matters. Section 11(3) The quorum for a meeting of the Appeals Committee shall be three members. Section 11(4)(a) the rejection of any individual application for refugee status; and Section 11(4)(b) the cancellation, revocation and termination of refugee status. Section 11(5) A member of the Appeals Committee shall hold office for a term of three years and shall be eligible for re-appointment for one further term. Section 11(6) Each member of the Appeals Committee shall have one vote but in case of a tie in votes, the Chairperson shall have a casting vote. Section 11(7) The Public Service Comm...

Section 12. Application for refugee status Section 12(1) An application for the grant of refugee status shall be made to the Commissioner either directly or through an authorized officer. Section 12(2) An authorized officer to whom any asylum seeker presents himself or herself shall refer that asylum seeker to the relevant authority. Section 12(3) The Commissioner shall, on receiving the application, invite the applicant to appear before him or her, to provide oral or documentary evidence in support of the claim for asylum. Section 12(4) The Applicant shall present his claim in person but retains the right to be accompanied by legal practitioner if he or she desires, provided that the expense for legal representation shall not be borne by the Department. Section 12(5) The decision of the Commissioner to grant or not to grant the application shall be notified to the applicant in writing and where the application is refused, the Commissioner shall give reasons for the refusal. Section 12(6) The Commissioner may delegate the function of conducting interviews to his or her staff within the Department who shall, upon finalization of the interview, forward the interview files to the Stat...

Section 13. Establishment of the Refugee Status Eligibility Panel Section 13(1) There is established a Refugee Status Eligibility Panel whose function shall be to review recommendations made on refugee status determination. Section 13(2)(a) a chairperson appointed by the Commissioner from the Department who has knowledge and experience in matters of refugee status determination; Section 13(2)(b) not less than four other members appointed by the Commissioner from among persons in the Department who have knowledge and experience in refugee affairs and refugee law. Section 13(3) The Eligibility Panel may, through the Commissioner co-opt representatives of the United Nations High Commissioner for Refugees or other agencies to provide technical advice. Section 13(4) The quorum for the Eligibility Panel shall be three persons and except as provided for in this Act, the Panel shall regulate its own procedures

Section 14. Appeals Section 14(1) A person aggrieved by the decision of the Commissioner under this Act may, within thirty days of receiving the decision, appeal in person or through his or her representative or through any other interested party to the Appeals Committee against the decision. Section 14(2) A person who is aggrieved by the decision of the Appeals Committee may appeal to the High Court within thirty days of being notified. Section 14(3) Where the High Court upholds the decision of the Commissioner against which an applicant had unsuccessfully appealed to the Appeals Committee, the Commissioner shall within sixty days of the ruling of the High Court notify the Director of Immigration of the decision, who shall thereafter deal with the applicant in accordance with written law on immigration. Section 14(4) For purposes of sub-section (3), where an unsuccessful applicant fails to file an appeal within the time set out in this Act and a court of competent jurisdiction has not issued any orders thereof, the Commissioner shall notify the Director of Immigration, within sixty days of his or her determination or ruling of the Appeals Committee, who shall thereafter deal with...

Section 15. Institution of proceedings for unlawful presence in Kenya Section has made a bona fide application 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 or her right of appeal; or

Section 16. Medical Screening Section All refugees and asylum seekers who have entered Kenya shall be subjected to health screening upon entry in accordance with the provisions of the Public Health Act ( Cap. 242 ) for purposes of detecting and containing the spread of contagious diseases.

Section 17. Cancellation of refugee status Section 17(1)(a) a person recognized as a refugee has fraudulently misrepresented or omitted material facts which, if known, could have changed the decision to recognize that person as a refugee; or Section 17(1)(b) new evidence becomes available that a person should not have been recognised as a refugee. Section 17(2)(a) informing him or her of the fact that his or her status as a refugee is to be reconsidered; Section 17(2)(b) inviting him or her to make written representations to the Commissioner within a period of fourteen days from the date of service of the notice or such longer period as the Department may allow, regarding his or her status as a refugee; and Section 17(2)(c) inviting him or her to an interview in order to state his or her case with the Department, in person, accompanied by a legal representative or other representative. Section 17(3) The Commissioner shall consider every case notified to a refugee under subsection (2) and may make any inquiry or investigation it thinks necessary into such case. Section 17(4) After considering all the evidence, the Commissioner based on a legal assessment of the case may cancel the r...

Section 18. Revocation of refugee status Section 18(1) The Commissioner may revoke the status of any refugee if the refugee at any time after recognition as a refugee has committed a war crime or a crime against humanity, as defined in any international instrument to which Kenya is a party. Section 18(2) Where refugee status under this part has been revoked that person shall cease to be a refugee under this Act on the expiration of seven days after the date on which the Commissioner notifies the person concerned that his or her recognition has been revoked. Section 18(3) Where refugee status under this part has been revoked, every person who, immediately before such revocation, was within Kenya as a member of the family of such refugee shall have the right to apply to be considered as a refugee under section 12 of this Act. Section 18(4) The provisions of section 17 (2), (3), (4) and (5) shall, with the necessary modifications, apply to the revocation of refugee status by the Commissioner. Section 18(5) Any person whose refugee status has been cancelled or revoked shall leave the country within thirty days of notification of the final order relating to the cancellation or revocatio...

Section 19. Expulsion of refugees or members of their families Section 19(1) Subject to section 29 , the Cabinet Secretary may order the expulsion from Kenya of any refugee or member of his family if the Cabinet Secretary considers the expulsion to be necessary on the grounds of national security or public order. Section 19(2) Subject to subsection 19 (1) a refugee or an asylum seeker engaging in a conduct that is in breach or is likely to result in breach of public order or contrary to public morality under the law irrespective of whether the conduct is linked to his claim for asylum or not, may be expelled from the Kenya by an order of the Cabinet Secretary. Section 19(3) Before ordering the expulsion from Kenya of any refugee or member of his family in terms of this section, the Cabinet Secretary shall act in accordance with the due process of law.

Section 20. Refugee women and children Section 20(1) The Commissioner shall ensure that specific measures are taken to ensure the dignity and safety of women and children seeking asylum and women and children who have been granted refugee status at all times during their stay in designated areas. Section 20(2) The Commissioner shall ensure that a child who is in need of refugee status or who is considered a refugee receives appropriate protection and assistance, whether accompanied or not by his parents or any other person. Section 20(3) The Commissioner shall, as far as possible, assist a child referred to in subsection (2) to trace the parents or other members of the family in order to obtain information necessary for the reunification of the child with his or her family. Section 20(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 child permanently or temporarily deprived of his or her family.

Section 21. Care for persons with disability and persons who have suffered trauma Section The Commissioner shall ensure that appropriate measures are taken to ensure the safety of asylum seekers and refugees who suffer from disability or are of old age and persons or groups of persons who have been traumatized or otherwise require special protection at all times during admission into and stay in Kenya.

Section 22. Right to remain in Kenya during status determination Section 22(1)(a) until such person has been recognised as a refugee under that section; Section 22(1)(b) in the event of the application of such person being unsuccessful, until such person has had an opportunity to exhaust his right of appeal this Act; Section 22(1)(c) where such person has appealed under section 14 , and his or her appeal has been unsuccessful, until such person has been allowed a reasonable time, not exceeding sixty days to seek admission to a country of his or her choice. Section 22(2) The Cabinet Secretary may, on application being made to him or her by the person concerned, extend the three-month period referred to in subsection (1)(c) if he or she is satisfied that there is a reasonable likelihood of the person being admitted to a country of his or her choice within such extended period.

Section 23. Applicant to be issued with an asylum seeker's pass Section 23(1) A person who has submitted an application for refugee status in accordance with the Act shall be issued with a temporary pass valid for ninety days and it shall be evidence that the person has applied for refugee status in Kenya. Section 23(2) Every member of the family of the applicant shall also be issued with a similar document. Section 23(3)(a) until his or her application is granted or rejected and no appeal has been filed with the Appeals Committee; and Section 23(3)(b) until that person has exhausted his or her right of appeal. Section 23(4) A temporary pass issued under this Act shall be renewed after the expiry of ninety days until all rights connected with or incidental to an application for refugee status have been exhausted. Section 23(5) A person who has submitted an application for refugee status shall be under obligation to abide by all the laws of Kenya including all the lawful orders given by the mandated institutions under this Act.

Section 24. Entry into Kenya by refugees Section 24(1) Any person entering Kenya to seek asylum shall make his or her intention known immediately upon entry or within thirty days by reporting to the nearest reception centre or the nearest government administrative office. Section 24(2) Where a person is lawfully in Kenya and is subsequently unable to return to his country of origin for any of the reasons specified in section 3 , the person 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. Section 24(3)(a) designation of areas for reception, transit and residence of refugees, having due regard to the security requirement for refugees to be settled at a reasonable distance from the frontier of their country of origin; Section 24(3)(b) provision of adequate and appropriate facilities and services necessary for the group of persons affected by the influx with particular reference to women, children, victims of trauma, persons of old age and persons with disabilities; and Section 24(3)(c) ensuring the civilian and humanitarian character of areas designated...

Section 25. Designation of refugee reception officers Section 25(1) The Commissioner shall ensure availability of reception officers at designated entry points provided that where there are no designate reception officers, the immigration officers or other government officers stationed at the entry points shall act as reception officers. Section 25(2) If the reception officer who comes into contact with an asylum seeker is not an officer from the Department, the officer shall liaise with the Department for the necessary assistance or guidance. Section 25(3) Subject to subsection (2) asylum seekers may be temporarily accommodated at the reception holding areas as they await further processing by the Department. Section 25(4) Asylum seekers at transit centres shall be processed within a reasonable time. Section 25(5) Asylum seekers who enter the country through places, other than gazetted entry points, shall immediately report to the nearest government administrative office for further assistance.

Section 26. Duty of Reception officers Section to give applications and guidelines for refugee status to every person who wishes to apply for refugee status at the point of entry;

Section 27. Security Screening Section Any asylum seeker or refugee entering Kenya shall be subjected to security screening in accordance with the provisions of this Act and any other written law for purposes of detecting and containing any person who may pose a danger to the security of Kenya or the safety of the people and to prevent the trafficking in persons, especially women and children, terrorism and proliferation of arms and other contraband items.

Section 44. Regulations Section 44(1) The Cabinet Secretary shall, make regulations generally for giving effect to this Act, and for prescribing anything required or necessary to be prescribed by or under this Act within six months of the commencement of this Act. Section 44(2)(a) the assignment to the Commissioner of functions relating to the investigation, inspection and supervision of the reception, treatment and welfare of refugees; Section 44(2)(b) the procedure to be followed in applications for recognition of refugee status and the form in which such applications shall be made; Section 44(2)(c) the procedure to be followed in the expulsion of refugees; Section 44(2)(d) the form and issue of identification and travel documents to refugees and members of their families and the rights that attach to the respective documents; Section 44(2)(e) the application of the refugee database; Section 44(2)(f) the form and issue of identification documents to persons awaiting determination of their status; Section 44(2)(g) the procedures and rights during refugee status interviews; Section 44(2)(h) the control and regulation of persons who may be required to live within a designated place...

Section 28. Rights of and obligations of Refugees Section 28(1)(a) to the duties contained in the UN Convention, its Protocol and the OAU Convention; and Section 28(1)(b) all the laws in force in Kenya. Section 28(2) The Cabinet Secretary may, by notice in the Gazette and in consultation with the relevant county governments, designate specific counties to host refugees. Section 28(3) The Cabinet Secretary may, by notice in the Gazette , designate places and areas in Kenya to be transit centres for purposes of temporarily accommodating refugees. Section 28(4) Subject to this Act, refugees shall be enabled to contribute to the economic and social development of Kenya by facilitating access to, and issuance of, the required documentation at both levels of Government. Section 28(5) Subject to the laws applicable and taking into special consideration the special circumstances of refugees, a refugee recognized under this Act shall have the right to engage individually or in a group, in gainful employment or enterprise or to practice a profession or trade where he holds qualifications recognized by competent authorities in Kenya. Section 28(6) A refugee and an asylum seeker shall have the...

Section 29. Non-Refoulement Section 29(1)(a) the person may be subject to persecution on account of race, religion, nationality, membership of a particular social group or political opinion; or Section 29(1)(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 whole of that country. Section 29(2) The benefit of subsection 1 may not, however, be claimed by a refugee or asylum seeker whom there are reasonable grounds for him or her being regarded as a danger to the national security of Kenya.

Section 30. Designated areas Section The Commissioner shall work with the national and county Government authorities within and around the designated areas to ensure the protection of the environment and the rehabilitation of areas that had been used as designated areas.

Section 31. Requirement to reside in a designated area Section 31(1) The Commissioner may upon consideration of any special needs or conditions that may affect the refugee's protection and safety require any refugee within a designated area to move to or reside in any other designated area. Section 31(2) A refugee to whom an order has been made under this section; fails to comply with such an order shall be guilty of an offence under this Act. Section 31(3) The Commissioner shall appoint, from among officers within the Department, settlement officers to be in-charge of designated areas, reception, transit or residence areas for asylum seekers or refugees. Section 31(4) Every refugee or asylum seeker who wishes to change his or her place of residence shall notify the Commissioner in the prescribed manner. Section 31(5) Any refugee or asylum seeker residing outside a designated area at the commencement of this Act shall, as soon as is practicable after the commencement, notify the Commissioner in the prescribed manner of his or her situation and the Commissioner shall make such orders as may be necessary in the circumstances.

Section 32. Control of Designated Areas Section the organization, safety and discipline and administration of a designated area;

Section 33. Restriction of Persons Entering a Designated Area Section 33(1) No person or body other than a person authorized by the Commissioner, a person employed by the Department, or a refugee shall enter a designated area except with the permission of the Commissioner. Section 33(2) A person seeking to enter a designated area shall make an application to the Commissioner in writing stating the reasons and time for such an application. Section 33(3) The Commissioner may, on an application, review a decision made under subsection (1) where any new circumstance is brought to his attention. Section 33(4) A person who contravenes the provisions of this section commits an offence and shall upon conviction be liable to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding five years or, to both.

Section 34. Integration of refugees into communities Section 34(1) The Commissioner shall, so far as is practicable, ensure that there is shared use of public institutions, facilities and spaces between the refugees and the host communities. Section 34(2) The Commissioner shall sensitize the host communities about the presence of refugees and any other matters relating to their co-existence with each other. Section 34(3) The Commissioner shall, in consultation with the Cabinet Secretary, establish measures for the handing over of amenities set up for the use of asylum seekers and refugees to national and county government authorities upon the departure of refugees from the place where the amenities had been set up for their use.

Section 35. Consideration of refugee matters in development plans Section The Commissioner shall liaise with the national and county governments for the purposes of ensuring that refugee matters are taken into consideration in the initiation and formulation of sustainable development and environmental plans.

Section 36. Affirmative action for women, children and persons with disabilities Section In the integration of refugees in the host communities, the Commissioner shall, in cooperation with the United Nations High Commissioner for Refugees and the other organizations involved in the assistance of refugees, ensure that special attention is given to women, children, older persons, victims of trauma and persons with disabilities.

Section 37. Voluntary repatriation Section 37(1) An asylum seeker or refugee shall have right at any time to return voluntarily to the country of his or her nationality or from which he entered Kenya and any action or omission intended to prevent or restrict an asylum seeker or refugee from voluntary repatriation except in the due process of the law is prohibited. Section 37(2) A refugee who leaves Kenya on voluntary repatriation or who ceases to be a refugee for any other cause shall surrender all travel documents, identity cards, permits or any other documents which the refugee acquired by virtue of being a refugee and may take with him or her any movable property which he or she lawfully owns provided the refugee complies with any existing laws relating to property.

Section 38. Resettlement of refugees residing in Kenya Section 38(1) A refugee residing in Kenya may access resettlement in any other country outside Kenya except their country of origin. Section 38(2) The Commissioner in liaison with the relevant government ministry shall seek for more resettlement quarters in addition to the ones allocated through other agencies.

Section 39. Register for Refugees and Asylum Seekers Section 39(1) The Department shall keep and maintain a register of all persons who have been granted refugee status and persons seeking asylum in Kenya. Section 39(2) The Department shall as soon as practicable after the coming into force of this Act update the register to take into account the matters provided for by this Act. Section 39(3) The Commissioner shall register and keep records of all asylum seekers and refugees present and the designated areas established in Kenya and for this purpose shall be deemed to be the Registrar of the asylum seekers and refugees provided that he or she may delegate this function in writing to a Settlement officer or refugee officer.

Section 40. Confidentiality Section 40(1)(a) in the course of his duties under this Act; or Section 40(1)(b) with the consent of the Commissioner. Section 40(2) No person who receives information in contravention of sub section (1) shall disclose or publish the information. Section 40(3) A person who contravenes any provision of this section 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 both.

Section 41. Offences and penalties Section 41(1)(a) makes any false declaration or statement to a refugee officer or appointed officer which the person knows or has reasonable cause to believe to be false or misleading, for the purpose of obtaining or assisting another person to obtain admission, and or registration as an asylum seeker or refugee; Section 41(1)(b) knowingly misleads any refugee officer or authorized officer seeking information material to the exercise of any of her/his powers under this Act; Section 41(1)(c) after entering Kenya, fails to report without good reason within the period set out in this Act to a refugee officer or authorised officer to apply for asylum or recognition as a refugee; Section 41(1)(d) after having been lawfully admitted into Kenya other than as an asylum-seeker or refugee, knowingly submits without justifiable cause an application for asylum after the period for which he or she was admitted in Kenya expires; Section 41(1)(e) forges, alters, destroys or willfully defaces a refugee identification document or any other document issued under this Act; Section 41(1)(f) knowingly uses or has in his or her possession a forged refugee identificatio...

Section 43. Transitional provisions Section 43(1) In this section— "commencement day" means the date when this Act comes into operation; "former Act" means the Refugees Act (Repealed). "former Appeal Board" means the Appeal Board established under section 9 of the former Act. "former Committee" means the Refugees Affairs Committee established under section 8 of the former Act. Section 43(2) On the commencement day, all rights, powers and liabilities, whether arising under any written law or otherwise which immediately before such day were vested in, imposed on or enforceable against the former Refugee Affairs Secretariat, Refugee Appeals Board and Refugee Affairs Committee shall be deemed to be vested, imposed or enforceable against the current Department for Refugee Services, Refugee Status Appeal Committee and Refugee Advisory Committee respectively. Section 43(3) Any reference in any written law or in any document or instrument to the former Refugee Affairs Secretariat, Refugee Appeals Board and Refugee Affairs Committee shall, on and after the commencement day, be construed to be a reference to the current Department for Refugee Services, Refugee Status Appeal Committee and Ref...