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No Exceptions to Non-refoulement: The Prove of Persecution is Enough

Case 1. During the worst days of repression in Burundi, journalists were threatened with death if they would reveal the murders of people by the government in power. Many Burundian journalists fled the country to avoid certain death and came to Kenya.

Q 1. Would they have a right to ask Kenya to accept them as refugees?
Like international human rights law, modern refugee law has its origins in the aftermath of World War II as well as the refugee crises of the interwar years that preceded it. Article 14(1) of the Universal Declaration of Human Rights (UDHR), which was adopted in 1948, guarantees the right to seek and enjoy asylum in other countries. Subsequent regional human rights instruments have elaborated on this right, guaranteeing the “right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions.” American Convention on Human Rights, art. 22(7); African [Banjul] Charter on Human and Peoples’ Rights, art. 12(3) are examples.

In this case, the journalists have a basic and protected right to seek and be granted asylum by Kenya. However, the Kenyan government must endeavor to determine the refugee status of the journalists before granting them asylum. Typically, refugee status determinations or asylum adjudications are conducted by an official from a designated government department or agency. The Kenyan officials determining the status of the said journalists should have a solid knowledge of refugee law. The officials should interview the asylum seekers to evaluate the credibility of their case. The burden is on the asylum seeker to demonstrate that they meet the basic requirements to be granted asylum. Supporting evidence may take the form of country reports, NGO reports, news articles, affidavits or the in-person testimony of witnesses.

In accordance with Article 31 of the 1951 Convention, States Parties provide in their domestic law that an applicant’s irregular entry (i.e., without an entry visa or other documentation) will not have a negative effect on the asylum seeker’s application (The Refugees Act, No. 13 (2006), Kenya Gazette Supplement No. 11 § 13(a)-(b). In this case therefore the issue surrounding the fleeing journalists has nothing to do on how they entered into Kenya, the fact that they are already in Kenya and seeking for asylum should be tackled without raising  the question as to how they found their way to Kenya.

If Kenya finds that the journalists have a well-founded fear of persecution then Kenya should grant them asylum. Individuals granted asylum receive a residence permit for themselves as well as one for any dependent relatives (The Immigration and Refugee Protection Act, 2011 S.C., ch. 27,95(1)(a). States provide that where the Government denies an asylum application, the asylum seeker is to receive an explanation of the reasons for the denial. In this case therefore if the Kenyan authorities denies the Burundian journalists asylum then the government of Kenya must provide them with sufficient explanation as to why it cannot grant them asylum (The Refugees Act, No. 13, Legislative Supplement No. 7 (2009), Kenya Gazette Supplement No. 11 § 29(3). Furthermore, the Burundian journalists have a right to appeal the government of Kenya’s negative decision if at all the government denies them the refugee status.

Q 2. Now there is no threat to journalists in Burundi. Would they lose their refugee status and be forced to go back to Burundi?
Refugees are protected by international laws enshrined in different conventions and protocols. The fact that there is no more threat in Burundi does not automatically translate to the nullification of the refugee status of the Burundian journalist who have refugee status in Kenya. Furthermore, Kenya has no any right whatsoever to revoke the refugee status of these Burundians on grounds that there is no more danger in Burundi.

The basic principle of refugee law, non-refoulement refers to the obligation of States not to refoule, or return, a refugee 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.” 1951 Convention relating to the Status of Refugees, art. 33(1). Non-refoulement is universally acknowledged as a human right. It is expressly stated in human rights treaties such as Article 3 of the Convention against Torture and Article 22(8) of the American Convention on Human Rights.

Additionally, both regional and domestic courts have interpreted the rights to life and freedom from torture to include a prohibition against refoulemen. The principle of non-refoulement prohibits not only the removal of individuals but also the mass expulsion of refugees. This is also container in African [Banjul] Charter on Human and Peoples’ Rights, art.12(5).

On this solid ground, the rights of refugees are so strongly anchored and as such no state has a right to return refugees. Kenya has no any legal or humanitarian ground to justify any move to revoke the refugee status of the Burundian journalists. The only thing that the government of Kenya with other humanitarian organizations dealing with refugees like UNHCR can do is to assess the situation in Burundi and assure the journalists that the political climate in their country is calm and that there is no more danger of persecution. Nevertheless, it is upon the journalists who are refugees in Kenya to decide to go back to their country or not. If they wish to go back then the Kenyan government and UNHCR have the obligation to support the return of these refugees. It is upon such voluntary decision that the refugee status of the Burundian journalists can come to its logical end.

Case 2. Many refugees are seeking entrance into Europe via Italy claiming that they are facing severe violation of human rights, especially those from Mali who often face death. Should they be allowed to come ashore in Italy and would they have any hearing at all. Or should they be put on the next boat back to their African countries. What are the legal obligations of the European countries? Explain your answer in terms of the legal obligations and jurisprudence involved.

The controlling international convention on refugee law is the 1951 Convention relating to the Status of Refugees (1951 Convention) and its 1967 Optional Protocol relating to the Status of Refugees (1967 Optional Protocol). The 1951 Convention establishes the definition of a refugee as well as the principle of non-refoulement and the rights afforded to those granted refugee status.

In order to understand how these procedures operate it is necessary to first identify how certain key terms in the 1951 Convention are defined within the domestic legal systems of particular States including the EU states. States Parties to the 1951 Convention and/or the 1967 Optional Protocol have incorporated the Convention’s definition of a refugee into their domestic law for example the Immigration Rules, 2012, S.I. 2012/11, art. 334 (U.K.), C.E.S.D.A. L711-1 (France.); The Immigration and Refugee Protection Act, 2011 S.C., ch. 27,96 (Canada.).

If the asylum seeker is determined to meet the definition of a refugee they are granted asylum. In this case the Italian government cannot put the Africans in the next boat back to Africa. The government has the obligation to listen and determine these peoples’ status. If they are asylum seekers with jusfiable reasons for the same then the Italian government has the responsibility to grant refugee status to these people.

However, in line with the 1951 convention, Italy should be able to determine that these people have been persecuted or that they have well-founded fear. Individual States have interpreted the 1951 Convention’s requirement of a well-founded fear of persecution to require asylum seekers to show that there is a reasonable possibility that they will suffer persecution if returned to their country of nationality or habitual residence for instance the Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). This is considered to be both an objective and subjective standard. Although well-founded fear refers to a future threat of persecution, individuals who have faced persecution in the past are presumed to have a well-founded fear for example as contemplated in the Immigration Rules of the UK, 2012, S.I. 2012/11, art. 339.

Theses Africans have the responsibility to demonstrate that they have well founded fear but also the Italian authorities have to understand that in such circumstances people might not have sufficient evident due to the prevailing situation in the countries from which they are fleeing such as Mali. With modern time world of information, it is easy for the Italian government to ascertain whether or not there are serious human rights violations in Mali as those people in the boat claim.

Case 3. Somalis are crowding into Kenya. Many are fleeing threats of death and torture, which would seem to justify protection. However, after the Westgate affair, there is strong evidence that many of these are major security risks for Kenya. What procedures should be followed and what should be done with these refugees?

The 1951 Convention does not define how States Parties are to determine whether an individual meets the definition of a refugee. Instead, the establishment of asylum proceedings and refugee status determinations are left to each State Party to develop. This has resulted in disparities among different States as governments craft asylum laws based on their different resources, national security concerns, and histories with forced migration movements. Despite differences at the national and regional levels, the overarching goal of the modern refugee regime is to provide protection to individuals forced to flee their homes because their countries are unwilling or unable to protect them.

There are two important restrictions to this principle. Persons who otherwise qualify as refugees may not claim protection under this principle where there are “reasonable grounds” for regarding the refugee as a danger to the national security of the host country or where the refugee, having been convicted of a particularly serious crime, constitutes a danger to the host community. 1951 Convention, art.33(2).

In this case therefore while the government of Kenya has the obligation to grant asylum, it must at ones be able to put in place screening mechanisms to ensure that the people who are granted asylum are not terrorists. This is certainly a difficult task but the Kenyan authorities have no option since they cannot turn away all the Somalis just because of terrorism. In fact similar cases from elsewhere for example the Matter of S-K-, 23 I&N 936 (BIA 2006),  have shown that Kenya stands to violate the international law if it turns back people seeking asylum on terrorism grounds especially when such claims cannot be proved.
So in this regard, we see that it is very difficult and indeed it is not allowed for any government to deny anybody asylum just for fear or unfounded claims of terrorism. Somebody can only be denied asylum if it is proved that the person can through evidence be linked to acts of terror and in that case, the person should not even be returned but actually arrested. Therefore, Kenya has an obligation to render refugee status to Somalis even amidst growing terror attacks and threats. The only thing that the government must do is to be able to put in place mechanisms to identify genuine Somali asylum seekers.

Case 4. You have obtained a job in the Kenyan embassy in Ethiopia. Two Ethiopian journalists have revealed that the Minister of Information in Ethiopia has been stealing money from the embassy budget. They are now running from the police to the Kenyan embassy and manage to take refuge in the Kenyan embassy. Should the Kenyan embassy offer them asylum?

Article 1(A)(2) of the 1951 Convention defines a refugee as an individual who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.

The Kenyan embassy in Addis is considered a “foreign land,” in fact in the diplomatic circles once these journalists enter into the Kenyan embassy they are considered as being in Kenya already. The Kenyan government authorities in the embassy must not turn back the journalists. On the contrary, the embassy must embark on the process to determine whether these journalists meet the criteria to be granted asylum. I indeed the Ethiopian journalist have well founded fear of persecution, then the Kenyan embassy must protect them and arrange for their safe travel to Kenya and eventually grant them refugee status.




No Exceptions to Non-refoulement: The Prove of Persecution is Enough No Exceptions to Non-refoulement: The Prove of Persecution is Enough  Reviewed by Ibrahim Magara on March 13, 2017 Rating: 5

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