Refugees may acquire rights to gain Kenyan citizenship, equal access to employment and buy and invest in properties following a petition filed by a rights group in court on Thursday.
The group, Kituo cha Sheria, wants the court to declare that refugees are eligible to apply for permanent residence and citizenship in Kenya.
It also wants the court to declare that Section 37 of the Kenya Citizenship and Immigration Act is unconstitutional because it excludes refugees from eligibility for citizenship and permanent residence, an option that is available to other foreign nationals.
The group filed the case at the High Court in Milimani Nairobi through lawyer Linet Opiyo claiming that refugees were being discriminated against.
“Failure to recognise refugee status as lawful status under immigration law, illegally and unfairly excludes refugees from being eligible to apply for citizenship and permanent residence,” said Ms Opiyo in the petition.
She explained that the Kenyan Constitution grants foreigners the right to apply to be registered as citizens or permanent residents if they meet certain requirements such as seven years’ lawful residence in Kenya or seven years’ marriage to a Kenyan citizen.
“But refugees who meet these requirements are denied citizenship and permanent residents because the Citizenship and Immigration Act does not recognise that refugees are lawful residents,” said Ms Opiyo.
The petitioner wants refugees to gain the right to apply for permanent residency or citizenship like other foreign nationals and ease their permission to work in the country.
Rights to equal protection
Ms Opiyo added that the Kenya Citizenship and Immigration Act violate refugees’ rights to equal protection and benefit of the law as it does not recognise refugee status as lawful stay, residence or immigration status in Kenya.
According to the United Nations High Commission for Refugees analysis dated October 31, 2022, Kenya plays host to 568,325 refugees and asylum seekers.
Of these, the Dadaab refugee camp had 233,726 refugees while the Kakuma refugee camp had 244,286 refugees with the remaining 90,313 living in urban areas.
The survey indicated that the majority of the refugees in Kenya (288,265) were from Somalia while 151,172 were from South Sudan.
Those from the Democratic Republic of Congo were 53,439 while Ethiopia (32,397), Burundi (23, 215), Uganda (3,656), Eritrea (2,550) and Rwanda (2,218).
Since 1963, Kenya has hosted refugees and asylum seekers fleeing persecution, human rights violations, conflicts and other serious violations from her neighbours.
Some refugees have lived in Kenya for decades and have integrated into the host communities.
Though others were born in Kenya, the country’s laws create barriers for them to apply for permanent residence or citizenship.
The rights group said this was a violation of the Constitution and international laws.
Kitua cha Sheria has sued the Cabinet Secretary for the Ministry of Interior and National Administration, the Attorney-General and the Directorate of Immigration Services while Kenya National Commission on Human Rights is listed as an interested party.
“While refugees’ right to work and other fundamental freedoms have been repeatedly recognised in international conventions, a range of legal and administratively opaque and rigid procedures to access work permits implemented by the Directorate of Immigration Services have denied refugees access to a work permit,” said lawyer Opiyo.
For example, she said, the Permits Determination Committee that considers applications for work regulates its own procedure and the process to apply remains unclear to many refugees.
Additionally, in cases of rejection, a “no merit” response is provided with no reasons.
“Due to the formal and informal barriers to securing work permits and restrictions on their freedom of movement, in order to survive, refugees are often forced to work illegally in the informal sector where exploitation is rife and their employers risk arrest for employing them without a work permit,” said Ms Opiyo.
The petition is pending a hearing.