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A child named as a dependent on a parent’s asylum application has protection from refoulement and a return order cannot be made upon them

 

 

G v G

[2021] UKSC 9

Supreme Court of the United Kingdom

Lord Lloyd-Jones, Lord Hamblen, Lord Leggatt, Lord Burrows, Lord Stephens, SCJJ

March 19, 2021

Reported by Faith Wanjiku

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International Law - application of international law – protection of refugees –refoulement – where a child had been named as a dependant on an asylum application but had not made an application in their own right – determination of an application for asylum – whether a child named as a dependent on a parent’s asylum application had any protection from refoulement and whether a return order could be made under the Convention in the circumstances – Hague Convention on the Civil Aspects of International Child Abduction, 1980, articles 12, 13 (b), 20; Procedures Directive, article 39

Brief facts

The appeal concerned the relationship of the 1980 Hague Convention (the Convention) to asylum law. The Convention was an international agreement incorporated into UK law which enabled the prompt return of a wrongfully abducted child to his or her country of habitual residence. The parties were the parents of an eight-year-old girl (G). G was born in South Africa, where she had been habitually resident all her life. In March 2020, G’s mother, the appellant, wrongfully removed G from South Africa to England, in breach of G’s father’s rights of custody. G’s father, the respondent, applied for an order under the Convention for G’s return to South Africa. The mother opposed his application on the ground, in particular, that there was a grave risk that return would expose G to physical or psychological harm or otherwise place her in an intolerable situation.

The mother identified as lesbian. She alleged that after separating from the respondent and coming out, her family subjected her to death threats and violence. On her arrival in England she applied for asylum on the basis of her fear of persecution by her family. She listed G as a dependant on her asylum application. G had not made an asylum application in her own right.

The central question in the appeal was whether G was protected from refoulement as a result of being listed as a dependant on her mother’s asylum application, such that she could not be returned to South Africa pursuant to the Convention proceedings until the asylum application was determined. If so, that raised the further question of how the Convention proceedings and the asylum claim could be coordinated. An asylum claim could take months, if not years, to resolve, and the Convention required the prompt determination of an application for the return of an abducted child (which meant, in the context, within six weeks). There was therefore a real risk that by the time the asylum claim had been determined, the relationship between the child and the left-behind parent would be harmed beyond repair. There was also a real risk in cases of that type that the taking parent would seek to achieve that objective by making a sham or tactical asylum claim.

The Court of Appeal held that a child listed as a dependant on an asylum application had no protection from refoulement, but that if G had made an application in her own right, she could not be returned prior to the determination of her application. The Court of Appeal concluded that there was no bar to ordering G’s return to South Africa. The mother appealed against that decision.

Issues

  1. Whether naming a child as a dependant on an asylum application could be understood to be an application by the child.
  2. Whether a child named as a dependent on a parent’s asylum application had any protection from refoulement and whether a return order could be made under the Convention in the circumstances.
  3. When was an application for asylum held as determined in relation to the process for granting applicants an effective remedy?

Relevant provisions of the law

Hague Convention on the Civil Aspects of International Child Abduction, 1980

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 20

The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

COUNCIL DIRECTIVE 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status

Article 2- Definitions

For the purposes of this Directive:

(c) ‘applicant’ or ‘applicant for asylum’ means a third country national or stateless person who has made an application for asylum in respect of which a final decision has not yet been taken;

(d) ‘final decision’ means a decision on whether the third country national or stateless person be granted refugee status by virtue of Directive 2004/83/EC and which is no longer subject to a remedy within the framework of Chapter V of this Directive irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome, subject to Annex III to this Directive;

(e) ‘determining authority’ means any quasi-judicial or administrative body in a Member State responsible for examining applications for asylum and competent to take decisions at first instance in such cases, subject to Annex I;

Article 7-Right to remain in the Member State pending the examination of the application

1. Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. That right to remain shall not constitute an entitlement to a residence permit.

Article 8- Requirements for the examination of applications

2. Member states shall ensure that decisions by the determining authority on applications for asylum are taken after an appropriate examination. To that end, member states shall ensure that:

(a) applications are examined and decisions are taken individually, objectively and impartially;

(b) precise and up-to-date information is obtained from various sources, such as the United Nations High Commissioner for Refugees (UNHCR), as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisions;

(c) the personnel examining applications and taking decisions have the knowledge with respect to relevant standards applicable in the field of asylum and refugee law.

Article 9 – Requirements for a decision by the determining authority 1)  Member States shall ensure that decisions on applications for asylum are given in writing.

Article 39 – The right to an effective remedy

1)  Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against the following: (a) a decision taken on their application for asylum, including a decision: 2)  Member States shall provide for time-limits and other necessary rules for the applicant to exercise his/her right to an effective remedy pursuant to paragraph 1.

Held

  1. There was no obligation on the Secretary of State to consider whether an individual was a refugee absent any application. However, article 2(g) of the COUNCIL DIRECTIVE 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Qualification Directive) and article 2(b) of the COUNCIL DIRECTIVE 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (Procedures Directive), only required there to be a request by a third country national or stateless person for protection who could be understoodto seek refugee status or other international protection. A request for international protection made by a principal applicant naming a child as a dependant was also an application by the child, if objectively it could be understood as such. Such an application could and should objectively be understood as an application by the child, for a combination of two reasons:

    a)   The inherent likelihood, expressly recognised in recital (27) to the Qualification Directive that any grounds which an adult applicant could raise for fearing persecution or serious harm of a relevant kind would also apply, by reason of their relationship, to a child who was a dependant of that adult.

    b)   In the case of a child, it was the parent applicant who determined, on behalf of their child, whether to make a claim for asylum.

  2. An omission by a child to make an application in their own right could not therefore be regarded as a choice which the child had made even if he or she had legal capacity to make it. Understanding an application for refugee status or other international protection which named a child as a dependant as including an application by the child accordingly protected the interests of the child by ensuring that the child’s own status was considered. Such separate consideration was necessary not least because, if the principal application was granted, the kind of residence permit for which the child was eligible depended on whether or not the child was a refugee or in need of international protection in his or her own right.
  3. If an application for international protection made by a parent naming a child as a dependant was not regarded as including an application by the child unless the latter application had been made formally, a refusal of the parent’s application would not prevent the parent from at that point making a further application for the child in his or her own right, which would then need to be considered and decided separately. In a case where there were Convention proceedings pending, that would have the potential to introduce an additional layer of delay. If there was a possibility that an asylum claim would be made in the name of the child, it was vital that it should be brought forward and decided at the first opportunity.
  4. A child named as a dependant on the parent’s asylum application and who had not made a separate request for international protection generally could and should be understood to be seeking such protection and therefore treated as an applicant.
  5. The Qualification Directive and the Procedures Directive were limited in their application to third-country nationals or stateless persons. Article 2(b) of the Procedures Directive defined application or application for asylum as an application made by a third country national or stateless person which could be understood as a request for international protection from a member state under the Geneva Convention. Article 2(f) of the Procedures Directive provided a definition of a refugee by reference to a third country national or a stateless person. Furthermore, the definition of refugee in article 2(c) of the Qualification Directive was also by reference to a third country national or a stateless person. Both Directives applied as G was a third-country national.
  6. In the Convention proceedings, there was no provision for any personal interview of an asylum seeker by trained decision-makers, nor any requirement to obtain up-to-date information as to the situation in the country of alleged persecution whether generally or in relation to particular social groups.
  7. There was no impediment to the High Court, in considering whether a defence (a grave risk that the return of a child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation) under article 13(b) of the Convention was made out, to making factual findings in relation to the constituent elements of the risk of refoulement. That was not cutting across or directly interfering in the exercise by the Secretary of State of her exclusive powers with respect to the control of immigration and asylum. The findings in the Convention proceedings were clearly potentially relevant but they did not discharge the Secretary of State from her statutory obligation to make her own independent assessment nor did they bind the Secretary of State.
  8. The factual findings made in the Convention proceedings were neither made by the determining authority nor pursuant to a process which complied with the examination procedure in the Procedures Directive, and thus they did not bring to an end the protection provided by article 7 of that Directive on applications made on behalf of dependants or minors. Rather, if a return order were made and implemented before the Secretary of State had discharged her obligation to determine whether the child was a refugee, that would effectively pre-empt her decision. Furthermore, the implementation of a return order made in the Convention proceedings would deny applicants the right to have their claims for asylum determined by the determining authority.
  9. The protection in article 7 of the Procedures Directive continued until the Secretary of State had made her determination. The question then became whether her determination bound the High Court. The obligation in article 7 of the Procedures Directive bound the State in its entirety so as to preclude any emanation of the State including the High Court from implementing a return order so as to require an applicant to leave the United Kingdom whilst their asylum claim was being considered by the determining authority. A dependant who could objectively be understood as being an applicant was entitled to rely on article 7 of the Procedures Directive which ensured non-refoulement of a refugee who was awaiting a decision so that a return order could not be implemented pending determination by the Secretary of State.
  10. Such a dependant could rely on paragraph 329 of the Immigration Rules which did relate to the rights of a refugee and was not solely an emanation of the duty to have proper respect for family life. On some exceptional basis, naming a child as a dependant could not objectively be understood to be a request for refugee status for the child then paragraph 329 was an emanation of the duty to have proper respect for family life. However, where an application for international protection could objectively be understood as a request for international protection by a dependant, then paragraph 329 was an emanation of the duty not to refoule a refugee under article 7 of the Procedures Directive. So, in addition to relying on article 7 of the Procedures Directive a dependant who objectively could be understood to be making a request for international protection was entitled to rely on paragraph 329 of the Immigration Rules which required that no action would be taken to require his or her departure from the United Kingdom prior to the determination of the application by the Secretary of State.
  11. An applicant had protection from refoulement pending the determination of that application, so that until the request for international protection was determined by the Secretary of State, a return order in the Convention proceedings could not be implemented. The two Conventions; the 1951 Geneva Convention and the 1980 Hague Convention were not independent of each other but rather had to operate hand in hand.
  12. It was apparent from the provisions of Chapter V that the application for asylum would not have been finally determined until the conclusion of the process for granting applicants an effective remedy which had been put in place by the United Kingdom in accordance with article 39 of the Procedures Directive.
  13. The domestic provision transposing the right to an effective remedy under article 46 of the Procedures Directive was to be found in section 82(1) of the Nationality, Immigration and Asylum Act 2002 (2002 Act) which provided for a right of appeal to the First-tier Tribunal. If that right was exercised, section 78 of the 2002 Act prevented an applicant from being removed from or required to leave the United Kingdom in accordance with a provision of the Immigration Acts. That was known as an in-country right of appeal. It was available in cases where the Secretary of State decided that it was not appropriate to certify an asylum claim as clearly unfounded under section 94 of the 2002 Act. In practice, that right of appeal was provided where the Secretary of State, despite refusing the application, decided that there was sufficient merit in a claim for asylum for a remedy, so as to be effective, to require an in-country appeal. There were further rights of appeal, in certain circumstances, to the Upper Tribunal, to the Court of Appeal and to the Supreme Court.
  14. Section 104(1) of the 2002 Act defined an appeal as pending during the period beginning when it was instituted and ending when it was finally determined, withdrawn or abandoned or when it lapsed because the Secretary of State issued a certificate under section 97 of the 2002 Act justifying the person’s exclusion on, in summary, national security grounds. In effect the appeal was pending during any period where an appellant had either an undetermined appeal in or below the Court of Appeal, or a right to seek permission to appeal up to the Court of Appeal. An application for asylum was pending and would not have been determined until the conclusion of the appeal process in accordance with section 104(1) of the 2002 Act.
  15. Article 39(3)(a) of the Procedures Directive provided that member states had to provide rules dealing with the question as to whether the right to an effective remedy would have the effect of allowing applicants to remain in the member state concerned pending its outcome. In Chapter III of the Procedures Directive a number of exceptions to the basic principles and guarantees were set out together with various provisions for curtailing or limiting the remedy provided to asylum seekers. So, it was not always a requirement that the right to an effective remedy required there to be a suspensive effect on any order to return an applicant pending the final determination of the application.
  16. The provision made by the United Kingdom to make rules in accordance with its international obligations dealing with the question of whether an appeal would have the effect of allowing applicants to remain in the United Kingdom pending its outcome was contained in section 78(1) of the 2002 Act, which provided that while a person’s appeal under section 82(1) was pending he could not be removed from the United Kingdom in accordance with a provision of the Immigration Acts, or be required to leave the United Kingdom in accordance with a provision of the Immigration Acts.
  17. That protection only related to being removed from or being required to leave the United Kingdom in accordance with provisions of the Immigration Acts. There was no requirement to read down section 78 of the 2002 Act to comply with article 7 of the Procedures Directive on the right to remain in the member state pending the examination of the application as the obligation in article 7 only applied until the Secretary of State had made a decision. A return order made under the Convention did not remove or require a child to leave the United Kingdom in accordance with the provisions of the Immigration Acts. So, the question arose as to whether the protection in section 78 of the 2002 Act applied to a child pending determination of their in-country appeal in order to comply with the obligation to provide an effective remedy under article 39 of the Procedures Directive.
  18. There could not be an effective remedy under an in-country appeal process if in the meantime a child had in fact been returned under the Convention to the country from which they had sought refuge. Accordingly, an in-country appeal acted as a bar to the implementation of a return order in the Convention proceedings. Due to the time taken by the in-country appeal process that bar was likely to have a devastating impact on the Convention proceedings. That impact should urgently be addressed by consideration being given as to a legislative solution. An out-of-country appeal would not act as a bar to the implementation of a return order in the Convention proceedings. Implementation of a return order if an out-of-country appeal was pending was consistent with the Procedures Directive and with domestic legislation.
  19. Article 20 of the Convention provided that the return of the child under the provisions of article 12 could be refused if that would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Although article 20 was not expressly incorporated by the Child Abduction and Custody Act 1985, it had been given domestic effect by section 6 of the Human Rights Act 1998 which made it unlawful for any public authority to act in a way that was incompatible with the European Convention on Human Rights (ECHR), so that a court as a public authority was bound to give effect to ECHR rights wherever they appeared, including the rights in article 20. The critical question was what would happen if, with the mother, the child was returned. If the court concluded that, on return, the mother would suffer such anxieties that their effect on her mental health would create a situation that was intolerable for the child, then the child should not be returned.
  20. The application of article 13(b) of the Convention ensured that the court was not acting in a way which was incompatible with the ECHR. The Convention proceedings were focused upon the child, but that focus itself involved consideration of the position of the taking parent. Article 20 of the Convention was not to be used as a way around the rigours of the other exceptions to return of the child.
  21. No judgment of the court would be framed in such a way as to appear to determine any question of refugee or subsidiary protection. That was exclusively a matter for the Secretary of State. However, whilst the court did not determine the request for international protection it did determine the Convention proceedings so that where issues overlapped the court could come to factual conclusions on the overlapping issues so long as the prohibition on determining the claim for international protection was not infringed. In that way an exclusive focus on the merits of the Convention proceedings had to in certain cases also require consideration of the facts giving rise to the claim for international protection. The mother’s (appellant’s) arguments based on the ECHR properly analysed arose under article 13(b) of the Convention and they could be addressed in the Convention proceedings. There was no reason why those proceedings could not be heard and determined prior to a decision in relation to the requests for international protection.
  22. The court could consider the merits of the Convention proceedings even if the factual issues overlapped with the asylum claims, so long as the prohibition on determining the claim for international protection was not infringed. If as a result of the decision of the Secretary of State in relation to the asylum process a reconsideration of the Convention proceedings was required, then the court had power in England and Wales under FPR rule 12.52A or under the inherent jurisdiction to review and set aside a final order under the Convention.
  23. The High Court should be slow to stay an application prior to any determination. That was a general proposition, so that there could be cases where it was appropriate for the court to exercise its discretion to stay the Convention proceedings pending determination by the Secretary of State of an asylum claim. However, the general proposition was entirely consistent with the aims and objectives of the Convention including the obligations of expedition and priority. Also, it had the benefit of making available to the Secretary of State a reasoned High Court decision on the evidence available to it, and tested to an extent by an adversarial process, of an application for summary return.
  24. The Secretary of State had sole responsibility for both examining and determining claims for international protection. The Secretary of State’s responsibilities included examining and determining whether refugee status or subsidiary protection should be revoked. The court had been properly sensitive to the fact that decision-making functions had been assigned to particular primary decision-makers by Parliament or under powers emanating from Parliament; and had been clear that the court had no power to review or otherwise interfere with the decision-making of that body except on a statutory appeal or on conventional judicial review grounds. All decisions relating to asylum applications including decisions to withdraw or revoke asylum status fell within the exclusive powers of the Secretary of State, no court or tribunal had any power to intervene outside the statutory appeal process set out in the 2002 Act.
  25. The Convention proceedings were separate from the asylum process. Frequently, the same factual background formed the basis for both; an application for asylum by a child and a defence to an application for a return order under article 13(b) (grave risk to the child) of the Convention. In determining an application for a return order under the Convention, the court did not impinge in any way upon the Secretary of State’s exclusive function in determining refugee status. Rather, information in the Convention proceedings and the court’s decision could inform the determination by the Secretary of State of a person’s asylum claim or as to whether the Secretary of State revoked refugee status. Similarly, information available to the Secretary of State such as country background information (though in the present case that information was publicly available) and the decision of the Secretary of State could inform the court’s decision in the Convention proceedings.
  26. For the Geneva Convention and the Hague Convention to operate hand in hand, there were various practical steps which should ordinarily be taken, aimed at enhancing decision making in both sets of proceedings, where they were related. Proceedings were related once it became apparent that an application for asylum had been made by a parent (regardless of whether the child was objectively understood to have made an application or been named as a dependant) or by a child.
  27. As soon as it was appreciated that there were related Convention proceedings and asylum proceedings it would generally be desirable that the Secretary of State be requested to intervene in the Convention proceedings. If joining the Secretary of State as a party to the Convention proceedings would result in the court’s determination being binding on her then the question arose as to whether that would infringe upon her sole responsibility for both examining and determining claims for international protection. It was sufficient if the Secretary of State ordinarily be requested to intervene so ensuring that the decisions in the Convention proceedings did not trespass on her responsibilities in the asylum process.
  28. Other steps which in general it was desirable should be taken as soon as it was appreciated that there were related proceedings included:

    a)   Ensuring that there was liaison and a clear line of communication between the courts and the Home Office;

    b)   Joining the child as party to the Convention proceedings with representation; and

    c)    Directing that the papers that had by that stage been provided to the Secretary of State in relation to the asylum application should be disclosed to the child’s representative.

  29. In carrying out the balancing exercise a relevant factor would be whether the left-behind parent in the Convention proceedings was the alleged actor of persecution of the applicant for asylum. Furthermore, in carrying out the balancing exercise it would ordinarily be appropriate to identify the information contained in the asylum application which was distinct from and additional to the information that the taking-parent had already disclosed in the Convention proceedings (the additional information). There was an obligation on the legal representatives in the Convention proceedings to consider the asylum documents to identify the additional information and ordinarily it was the confidentiality of the additional information that had to be balanced.
  30. It would be necessary for the examiner to gain the confidence of the applicant in order to assist the latter in putting forward his case and in fully explaining his opinions and feelings. In creating such a climate of confidence, it was, of course, of the utmost importance that the applicant’s statements would be treated as confidential and that he be so informed. Any disclosure exercise conducted in the Convention proceedings would need to balance the systemic importance of maintaining confidentiality in the asylum process, together with the applicant parent’s and the child’s particular right to confidentiality in that process against the left-behind parent’s rights under articles 6 (right to a fair trial) and 8 (right to respect for private and family life) of the ECHR and the child’s rights under article 8 of the ECHR.
  31. The difficulty that arose related to harmonising, in so far as possible, the speed of the decision-making processes under the respective Conventions. All the parties and interveners in the present case recognised the need for mechanisms to enable the court and the Secretary of State to co-ordinate their respective proceedings, to secure expedition in both.
  32. In cases linked to the Convention proceedings consideration should be given to ensuring that any asylum appeal or any asylum judicial review would normally be assigned, in England and Wales and Northern Ireland, to a Family Division High Court judge (though not the same judge with conduct of the Convention proceedings). An equivalent recommendation in respect of Scotland was made and that would mean that any asylum appeal or any asylum judicial review in cases linked to the Convention proceedings be normally assigned to a judge from the Court of Session with experience of family cases.
  33. It was desirable that the High Court should have oversight over and be in a position to co-ordinate both proceedings until both had been concluded. For instance, if the Secretary of State refused a child refugee status and if the child appealed to the First-tier Tribunal then it would be a matter for the High Court judge to bring the matter urgently to the attention of the Senior President of Tribunals and of the Lord Chief Justice requesting that a Family Division High Court judge acts in the First-tier Tribunal.

Appeal partly allowed.

Orders

  1. A child named as a dependant on her parent’s asylum request who could objectively be understood to have made a request for international protection had protection from refoulement pending the determination of that application so that until then a return order in the 1980 Hague Convention proceedings could not be implemented.
  2. Order of the Court of Appeal setting aside the stay imposed by the High Court and remitting the case to the Family Division for further consideration of the 1980 Hague Convention application maintained.

Relevance to Kenya’s legal system

The Constitution of Kenya, 2010 provides in article 19 (2) that (2) the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. Article 21(3) goes ahead to provide that all State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.

Refugee matters are provided for in the Refugees Act, No. 13 of 2006. Section 2 on interpretation provides that “asylum” means shelter and protection granted by the Government to persons qualifying for refugee status in accordance with the provisions of this Act and in accordance with International Conventions relating to refugee matters referred to in section 16; while “asylum seeker” means a person seeking refugee status in accordance with the provisions of this Act.

Section 3 on meaning of a refugee provides that a person shall be a statutory refugee for the purposes of this Act if such 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.

Section 7 provides for the Commissioner for Refugee Affairs whose mandate includes to co-ordinate all measures necessary for promoting the welfare and protection of refugees and advise the Minister thereon, formulate policy on refugee matters in accordance with international standards; ensure, in liaison with the United Nations Agencies and any other institutions, the provision of adequate facilities and services for the protection, reception and care of refugees within Kenya, promote as far as possible durable solutions for refugees granted asylum in Kenya, receive and process applications for refugee status; (h) implement the decisions of the Committee, register all refugees, issue refugee identification cards and travel documents to refugees and manage refugee camps and other related facilities.

Section 1 on recognition of refugees provides that any person who has entered Kenya, whether lawfully or otherwise and wishes to remain within Kenya as a refugee in terms of this Act shall make his intentions known by appearing in person before the Commissioner immediately upon his entry or, in any case, within thirty days after his entry into Kenya. Subsection (2) provides that in the case of a person who is lawfully in Kenya and is subsequently unable to return to his country of origin for any of the reasons specified in section 3(1), he 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 12 on residence in Kenya pending recognition as refugee, etc. provides that notwithstanding the provisions of any other Law, any person who has applied under section 11 for recognition of his status as a refugee and every member of his family, may remain in Kenya until such person has been recognized as a refugee in terms of that section; in the event of the application of such person being rejected, until such person has had an opportunity to exhaust his right of appeal and where such person has appealed and the appeal has been unsuccessful, he shall be allowed reasonable time, not exceeding ninety days, to seek admission to a country of his choice.

Section 18 (a) on non-return of refugees, their families or other persons provides that no person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or to subjected any similar measure if, as a result of such refusal, expulsion, return or other measure, such person is compelled to return to or remain in a country where the person may be subject to persecution on account of race, religion, nationality, membership of a particular social group or political opinion.

Kenya has acceded to the Geneva Convention relating to the Status of Refugees, 1951 and its 1967 protocol. Article 3 provides that the Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin. Article 33 provides on prohibition of refoulement provides that no contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Kenya is also a signatory to the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 which defines in its article 1 refugee to mean every person who, owing to 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 as a result of such events is unable or, owing to such fear, is unwilling to return to it. Article 2 provides that Member States of the OAU shall use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality. The grant of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member State. Article 5 provides that the essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will.

There is also the United Nations High Commissioner for Refugees (UNHCR), a UN Refugee Agency which strives to ensure that everyone has the right to seek asylum and find safe refuge in another State, with the option to eventually return home, integrate or resettle. The UNHCR, has supervisory responsibility for the 1951 Geneva Convention and its 1967 Protocol. UNHCR acted as one of the interveners in the UK judgment and submitted that the Court of Appeal erred in finding that a child named as a dependant on a parent’s asylum application has no protection from refoulement to persecution. UNHCR also supported a harmonious application of the 1951 Geneva Convention and the 1980 Hague Convention.

The UN Agency has an office in Kenya and it is involved in registration and documentation of refugees in order to protect against refoulement (forced return), arbitrary arrest and detention. It helps keep families together and assists UNHCR in reuniting separated children with their families. It is also involved in resettlement of refugees, refugee status determination, the process of determining whether a person who has applied for asylum meets the definition of a refugee as provided in the 2006 Refugee Act of Kenya. It has also intervened in judgments revolving around protection of fundamental rights of refugees.

In Kituo Cha Sheria & 8 others v Attorney General [2013] eKLR, the court held that the affirmative policy of the government to close down registration centres in urban areas in order to force urban refugees into camps undermined the protection and the rights of refugees living in urban areas by imposing a policy of encampment thus denying them an opportunity to renew identity papers. It further held that refugees were considered vulnerable and a State directive to organisations and other bodies not to provide assistance to urban refugees was directly inconsistent with its special responsibility towards vulnerable persons under article 21(3) of the Constitution apart from undermining the right to dignity. Implementation of the Government Directive would violate State international refugee protection obligations. Furthermore, aggressive pursuit of such a policy could have the effect of constructively repatriating urban refugees back to the countries from which they had fled.

The UK judgment reflects the same principles as the regional instruments Kenya is a party to and Kenya’s national legislation on prohibition of refoulement of refugees as it violates their human rights. The judgment is thus essential in expanding the jurisprudence on refugees, third country nationals and matters refoulement.

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