VI. Kenya's de facto Encampment Policy for Refugees

Kenya has never officially adopted a policy requiring Somali (or other) refugees to stay in camps. International refugee law and its own refugee legislation requires it to guarantee refugees' freedom of movement throughout Kenya [168] and provides that asylum seekers can apply for refugee status at any of the Department of Refugee Affairs' offices in Kenya, including in Nairobi. [169] However, since the early 1990s, Kenya has-in practice-adopted an encampment policy. [170] The 2006 Refugees Act requires the authorities to formally designate all refugee camps, [171] and although the Act does not state that camps are the only place in Kenya where refugees may live, the authorities and UNHCR use a number of disincentives-including unlawfully restricting their freedom of movement-to limit the number of refugees choosing to live and move outside of camps. [172]

Number of Somali refugees in Nairobi

There are no official statistics for the number of Somali nationals who have left Somalia following the outbreak of war in 1991 and who have chosen to settle in Nairobi. [173] Although Kenya's Department of Refugee Affairs to some extent registers refugees from all nationalities in Nairobi and issues them with them with "Alien's Certificate" cards (see below), there are no official statistics available. [174]

By December 31, 2008, UNHCR had registered 34,249 refugees and 2,266 asylum seekers in Nairobi. Of these, 15,090 were Somalis, 1,910 of whom applied since January 1, 2004. [175] This number is widely believed to be only a small fraction of the total number of Somali nationals-possibly in the tens of thousands and maybe well over 100,000-living in Nairobi. [176] NGO staff working in the Somali border town of Doble report that half of the refugees interviewed in 2008 said they were travelling straight to Nairobi (with the other half saying they were going to Dadaab's camps). [177] In 2008, UNHCR registered almost 65,000 Somali refugees in Dadaab. If these observations are any indication of the true movement patterns, this means that in 2008 alone tens of thousands of Somali refugees arrived in Nairobi, although only 654 Somali asylum seekers applied for refugee status with UNHCR in 2008 (compared to almost 60,000 who applied in the same period in Dadaab's camps). [178]

Restriction of humanitarian assistance

The first disincentive for Somali refugees to live outside Dadaab's camps is the absence of humanitarian assistance. When registered in Dadaab, refugees are given a ration card which states that the holder of the card has no right to receive any form of humanitarian assistance outside the camps. [179] If a refugee applies for refugee status with UNHCR in Nairobi, the first screening test-to establish why the refugee wants to live in Nairobi and not in a camp (see below)-includes among its criteria "economic self-sufficiency," and all refugees are required to confirm they understand that they are not entitled to government or UNHCR assistance if they live outside refugee camps. [180]

Permission to travel from Dadaab to Nairobi

The second disincentive for leaving Dadaab's camps is the Kenyan government's unlawful policy restricting officially sanctioned movement between the camps and other parts of Kenya.

Once registered in Dadaab's camps, the only documentation refugees receive is a UNHCR food ration card and they are not permitted to travel outside of the camps unless they obtain a "movement pass" (known colloquially as a "travel document"), which is co-signed by the DRA and UNHCR's Dadaab sub-office. [181]

Somali nationals stopped by police outside of Dadaab's camps who do not have a movement pass are liable to arrest and a fine. [182] However, given that Somali nationals travelling directly from the border to Nairobi-without passing through the camps-are known to have been arrested, detained, and unlawfully deported to Somalia (see above), refugees travelling from the camps to Nairobi without a movement pass risk far more than just a simple fine.

To obtain a movement pass, refugees in Dadaab must convince the DRA [183] that they have to travel to Nairobi for one or more of the following reasons: urgent health issues that cannot be treated in the camps; further education; death of relative elsewhere in Kenya; tracing family members; embassy visits (for example for resettlement outside Kenya); purchase of stock for camp-based trading; or security threats in the camps. [184] These criteria have been developed on an ad hoc basis over time, are not prescribed by law or regulation, and are not available in written form. [185]

UNHCR says that it would prefer to "redirect its efforts to ensure wider freedom of movement" for Somali refugees "rather than be perceived as condoning encampment." To date these efforts have involved "minimizing discretionary decisions" by the Department of Refugee Affairs in its issuing of movement passes and ongoing discussions with the DRA to agree on "transparent and clear procedures for the issuance of passes and criteria for movement in Kenya."[186]

However, international refugee and human rights law, as well as the Kenyan Constitution, clearly prohibit interference with recongized refugees' freedom of movement unless the government can show that free movement would endanger "defence, public safety or public order."[187] In the absence of such a declaration, which could be challenged in court if believed to be without foundation, Kenya's current movement pass system is unlawful and should be abolished.

Lengthy UNHCR refugee status determination procedures and unclear Department of Refugee Affairs registration practices in Nairobi

The third disincentive for seeking refugee status outside of Dadaab's camps has been UNHCR's lengthy refugee status determination procedures in Nairobi-during which time Somalis have insecure legal status and face police abuses-and unclear refugee status determination procedures carried out in Nairobi by Kenya's Department of Refugee Affairs.

Lengthy UNHCR refugee status determination procedures and procedural delays in Dadaab and Nairobi

Despite the DRA's authority to process asylum applications and to recognize and register refugees, its capacity remains limited and UNHCR continues to conduct refugee status determinations in Nairobi. Although some Somali refugees apply for refugee status with the DRA, many continue to apply with UNHCR. UNHCR recognition leads to a "Mandate Refugee Certificate" (colloquially referred to as a "blue mandate") [188] and to a "Convention Travel Document" which, unlike DRA-based status, allows the recognized refugee to travel outside Kenya. [189]

Since the Kenyan government forced the closure of UNHCR's refugee transit center in Liboi in January 2007, refugees arriving in Dadaab's camps register for assistance with UNHCR.  Before 2008, UNHCR would rapidly recognise Somalis in Dadaab under the 1969 OAU Convention. With the influx of refugees in 2008, UNHCR stripped its procedures down further to the bare minimum, and now a person only needs to show they are a Somali national [190] to ensure that UNHCR automatically recognizes them in a matter of minutes as a refugee under the 1969 OAU Convention. [191]

In contrast, until early 2008 UNHCR in Nairobi applied a lengthy two-or if necessary-three stage test to Somali asylum seekers.[192] On average, the test took anywhere between six and nine months[193] and in some cases even up to two years.[194] In early 2008, UNHCR simplified its procedure, but because of a backlog of asylum cases for all nationalities, by January 2009 Somali asylum seekers were still waiting up to nine months to be recognized as refugees, in contrast to their fellow refugees in Dadaab who were recognized in a matter of minutes. In March 2009, UNHCR said that the waiting time stood at four months and that by April 2009 it would be reduced to two months.[195]

Even under UNHCR's simplified procedures introduced in 2008, an asylum seeker must first explain in writing why she wishes to stay in Nairobi.[196] If she does not pass this stage, she is told to go to Dadaab. To succeed applicants must fulfil one or more of the following (unpublished) criteria: they face a security threat in the camps; they have serious health issues; they have educational opportunities in Nairobi; they have an offer of fixed employment in Nairobi; or they are economically self-sufficient.[197] UNHCR told Human Rights Watch that it does not require applicants to produce evidence of economic self-sufficiency and that as long as the applicant understands they will receive no UN or government assistance, they will pass this stage of the process.[198]

Once a Somali refugee has convinced UNHCR that she has a good reason to remain in Nairobi, she is assessed under the 1969 OAU Convention and with the exception of a few cases, all Somali applicants are recognised under this Convention. [199]

During the time it takes UNHCR to recognize them as refugees and issue them with Mandate Refugee Certificates, Somali asylum seekers often fall victim to abuses by the Kenyan police, who view asylum seekers as easy prey. Somali asylum seekers face arbitrary arrest and detention and frequently face demands for bribes.[200]UNHCR has confirmed that "police harassment and extortion of money" is one of asylum seekers' (and even recognised refugees') main protection concerns in Nairobi; that female asylum seekers and refugees claim that Kenyan police sexually harass them and threaten them with rape if they do not have enough money to pay the requested bribes; and that police from Pangani District in Nairobi go to Eastleigh (where most Somali nationals live) during their lunch break to demand bribes.[201]

Somali asylum seekers waiting to be formally recognised as refugees have faced a greater risk of abuse at the hands of Kenyan police due to UNHCR's practice of issuing them only with an "Appointment Slip," rather than with a formal asylum seekers identity card. [202] Kenyan NGOs have described how police seeking bribes routinely disregard and even rip up appointment slips. [203] In March 2009, UNHCR was working towards registering and screening Somali asylum seekers as soon as they apply for asylum at UNHCR's offices and issuing them with Appointment Slips only for the purpose of picking up their Mandate Refugee Certificate. [204]

DRA Alien Certificate Cards issued to Somali refugees

The lack of transparency in the way DRA registers refugees is the final disincentive for Somali refugees to attempt to survive outside of Dadaab's camps.

The DRA is mandated to register and issue all refugees in Kenya with identification cards and travel documents. [205] However, although it has registered some refugees, it has not done so in a transparent way. Human Rights Watch was unable to obtain information from the DRA to clarify its current status determination role. The way in which the DRA has registered non-nationals since 2006 has led to considerable confusion among asylum seekers and those who work with them. [206]

Beginning in 2006, the DRA carried out a major registration exercise for non-Kenyan nationals in Nairobi. The DRA never clearly announced the purpose of the exercise and never released official registration statistics. Neither Kenyan NGOs working with refugees in Nairobi nor UNHCR in Nairobi are clear on the purpose of the exercise and whether it was part of an attempt to begin to put in place a Kenyan refugee status determination procedure. [207] There was initial speculation that it was intended to register foreign nationals, including Somalis, running unlicensed business in Nairobi. [208] However, the exercise resulted in an estimated 50,000 non-Kenyan nationals, including an estimated 20,000 Somalis, [209] receiving "Alien's Certificate" cards, whose purpose was not clear. [210] Because of this lack of clarity and because many of the cards' expiry dates expired even before the cards had been delivered, some of them [211] were replaced by a second identical Alien's Certificate card on which the words "this complies with the Refugees Act" were hand-written, indicating that the purpose was to carry out refugee registration. [212] According to UNHCR, this was the first time the Kenyan government officially recognized the existence of refugees in Nairobi. [213]

In parallel with this one-off registration exercise, the DRA has continued to issue Alien Certificate cards to foreign nationals approaching the DRA to claim refugee status. However, Alien Certificate cards are not provided for under any Kenyan law and NGOs working with refugees in Nairobi are not clear on the extent to which refugees can access these certificates. [214]