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September 25, 2018

How Kenyan law protects rights of refugee families

Refugee is not a new terminology or phenomenon. The UN recognises refugees and stateless persons and grants legal recognition and protection under the UN Convention from way back in 1954.

In the recent past we have been seeing many people seeking asylum in Europe. This might turn out to be largest refugee challenge in the history of Europe.

Many families are leaving Africa to Europe via the dangerous Mediterranean Sea, seeking a better life in terms of safety and economic wellbeing of their families. Tragically, many families have lost their loved ones in the process.

The lucky ones are still walking miles in a spirited drive to seek asylum in countries like Germany.

In Kenya, the Refugee Act 2006 has been tailor-made to make provision for the recognition, protection and management of refugees and for connected purposes. The act has made specific reference and safeguards for refugee families.

Section 3(1) of the act stipulates that a person shall be a statutory refugee if such a 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.

According to the act, “asylum” means shelter and protection granted by the government to people qualifying for the refugees 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.

On the other hand, “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 18 years; or

(c) any dependent grandparent, parent, grandchild, or ward living in the same household as the refugee.

According to Section 15 (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 18 years.

(b) be issued with a refugee identification pass if below the age of 18 years.

(c) subject to subsections (2) and (3), be permitted to remain within Kenya for as long as the refugee concerned is permitted to.

(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.

According to Section 21(1) subject to 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.

The act is very gender sensitive in that it has gone ahead to provide for refugee women and children.

Section 23 (1) stipulates that the commissioner shall ensure that specific measures are taken to ensure the safety of refugee women and children in designated areas.

(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 his family in order to obtain information necessary for the reunification of the child with his 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.

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