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RECOMMENDATIONS

To the Government of Kenya

To create a domestic legal framework for refugees

    · The Kenyan Government should revise and adopt its 1994 Refugee Bill so that it fully implements the Kenyan government's responsibilities under the 1951 Refugee Convention and the OAU Refugee Convention.

    · Until comprehensive legislation is adopted, refugees living in camps or urban environments in Kenya should be afforded in law or administrative practice the rights granted to them under the Refugee Convention, primarily the rights to be protected against refoulement, to have equal access to the courts, to engage in wage-earning employment, to engage in self-employment (such as agriculture), the right to elementary education, and to access other forms of education.

To address the problems with camp confinement

    · Refugees should be permitted freedom of movement consistent with Article 26 of the Refugee Convention and Article 12 of the ICCPR. Until those standards are met, the Kenyan Government should at a minimum provide, by statute or administrative regulation, permission for the following categories of refugees to leave refugee camps on a voluntary basis:

        i) individuals with serious security problems in the camps;

        ii) individuals in need of medical care only available in urban centers;

        iii) individuals who have been living in a refugee camp for an excessive length of time, such as three years or more, and for whom alternative permanent solutions in the foreseeable future appear unlikely;

        iv) individuals who are in need of educational opportunities not available in the camps; and

        v) individuals with family members who are residing legally outside of the camp.

    · Standard procedures should be put in place for applications under these five exceptions to be brought before an impartial decision-maker. All recognized refugees, whether prima facie or individually recognized, should be allowed to apply for permission to leave the camps.

To address protection problems when asylum seekers and refugees first arrive in Nairobi and its environs

    · The Ministry of Home Affairs should set up temporary reception sites for asylum seekers and refugees, including those who have transferred from camps, providing them with safe shelter for at least the first two weeks that they are in Nairobi. These temporary sites could be appropriate places for UNHCR to identify at-risk individuals.

To address police harassment of asylum seekers and refugees in Kenya

    · The Kenyan Police should be instructed to recognize and respect asylum seeker and refugee documentation.

    · The Kenyan Police Department should provide training in refugee law to serving members of the police force, and it should incorporate refugee protection and law into the police academy curriculum for all new officers.

To provide adequate reporting mechanisms for security or police harassment problems

    · The Kenyan Police should facilitate the filing of official police reports by asylum seekers and refugees regarding security threats. Copies of these reports should be sent to UNHCR as a matter of standard operating procedure.

    · The Kenyan Government should put in place procedures that allow asylum seekers and refugees to safely make complaints about police involvement in harassment and corruption to an independent and impartial ombudsman. Copies of these reports should be sent to UNHCR as a matter of standard operating procedure. Disciplinary action must be taken against officers guilty of such behavior. A guarantee for the security of the complainant against any potential reprisals must be made and adhered to.

To address insufficient asylum seeker and refugee documentation

    · The Ministry of Home Affairs should provide asylum seekers, refugees, and their family members with identity documentation during each stage of the status determination process that acknowledges their permission to reside in Nairobi, and that is jointly signed by the government of Kenya and UNHCR.

To address the problem of refoulement

    · The Kenyan Judiciary should institute training for magistrates on international refugee law, particularly non-refoulement, and develop a standard inquiry during deportation proceedings for determining fear of persecution upon return.

    · The Kenyan Police should be trained to inquire into the prima facie or individualized refugee status of those in custody, and to contact UNHCR where appropriate.

    · The Kenyan Police should allow asylum seekers or refugees in their custody to be transported to UNHCR's offices in Nairobi.

To the Government of Uganda

To address the lack of a domestic legal framework for refugees

    · The Ugandan Government should adopt its 2001 Refugee Bill in accordance with the Refugee Convention and the OAU Refugee Convention.

    · Until comprehensive legislation is adopted, refugees living in camps or urban environments in Uganda should be afforded in law or administrative practice the rights granted them under the Refugee Convention, primarily the rights to be protected against refoulement, to have equal access to the courts, to engage in wage-earning employment, to engage in self-employment (such as agriculture), to elementary education, and to access other forms of education.

To address the problems with camp confinement

    · Refugees should be permitted freedom of movement consistent with Article 26 of the Refugee Convention and Article 12 of the ICCPR. Until those standards are met, the Ugandan Government should at a minimum provide, by statute or administrative regulation, permission for the following categories of refugees to leave refugee camps on a voluntary basis (as it already does on an informal basis for all categories except iv, below):

        i) individuals with serious security problems in the camps;

        ii) individuals in need of medical care only available in urban centers;

        iii) individuals who agree to be self-sufficient;

        iv) individuals who have been living in a refugee camp for an excessive length of time, such as three years or more, and for whom alternative permanent solutions in the foreseeable future appear unlikely;

        v) individuals who are in need of educational opportunities not available in the camps; and

        vi) individuals with family members who are residing legally outside of the camp.

    · Standard procedures should be put in place for applications under these six exceptions to be brought before an impartial decision-maker. All recognized refugees, whether prima facie or individually recognized, should be allowed to apply for permission to leave the camp.

To address problems in the refugee status determination system

    · The Ugandan Government should allow independent legal representatives or UNHCR protection staff to represent asylum seekers (and not merely observe the proceedings) before the Special Branch, the Refugee Eligibility Committee, and during appeals.

    · Relations between the country of origin and Uganda should not influence the standards applied or procedures followed in a particular asylum seekers' case. Instead, the Ugandan Government should ensure that its criteria for transfer to the Special Branch and Refugee Eligibility Committee are transparent, and its staff decides cases based on the facts presented and in accordance with the 1951 Refugee Convention and the OAU Refugee Convention.

    · The Office of the Prime Minister and the Special Branch should immediately cease using randomly chosen interpreters from among the refugee community at all stages of the determination process. Professional interpreters should be hired for each of the commonly spoken languages during determinations. If funds for interpreters are not available, then they should be sought from donor governments (see also the recommendations to donor governments, below).

To address protection problems when asylum seekers and refugees first arrive in Kampala and its environs

    · The Office of the Prime Minister should set up temporary reception sites for asylum seekers and refugees, providing them with safe shelter for at least the first two weeks that they are in Kampala. These temporary sites could be appropriate places for UNHCR to identify at-risk individuals.

To address the problem of secondary movement policies

    · The Ugandan Government should not apply secondary movement policies to a refugee in Uganda who was compelled to move because of specific protection or security problems in his or her previous country.

To provide adequate reporting mechanisms for security problems

    · The Ugandan Police should facilitate the filing of official police reports by asylum seekers and refugees regarding security threats. Copies of these reports should be sent to UNHCR as a matter of standard operating procedure.

    · An independent and impartial Ombudsman should investigate security incidents in which the Ugandan camp commandants, police, or military are implicated. Copies of all incident reports should be sent to UNHCR. Disciplinary action or prosecution must be taken against officers found responsible for such behavior. A guarantee for the security of the complainant against any potential reprisals must be made and adhered to.

To address the problem of real or perceived bias by the government of Uganda

    · The Office of the Prime Minister should build confidence among asylum seekers in the confidentiality of the status determination process through public announcements on radio and visits to refugee communities, informing asylum seekers about the process. As a subset of these efforts, Uganda should build public awareness in the Somali community of the importance of registering with the police in Old Kampala, and of obtaining refugee status.

    · The Ugandan Government should ensure that the Joint Verification Commission does not impede the rights of asylum seekers to fair and confidential assessment of their asylum claims

To address the problem of refoulement

    · The Ugandan Judiciary should institute training for magistrates on international refugee law, particularly non-refoulement, and develop a standard inquiry during deportation proceedings for determining fear of persecution upon return.

    · The Ugandan Police should be trained to inquire into the prima facie or individualized refugee status of those in custody, and to contact UNHCR where appropriate.

To United Nations High Commissioner for Refugees (UNHCR)

To address gaps in UNHCR's urban refugee policies

    · UNHCR should adopt the Evaluation and Policy Analysis Unit's clear recommendation to re-write and re-issue its 1997 Policy on Refugee in Urban Areas, focusing in more detail on methods for providing adequate protection and assistance to refugees living in urban areas. The revised policy should avoid generalizations, derogatory depictions, or incorrect assumptions about urban refugees (such as that they are "irregular movers") that undermine efforts to address their protection concerns.

    · UNHCR should revise its other policies and guidelines (e.g. during the planned revision of its Guidelines on Refugee Children in 2004) to address the specific protection and assistance problems facing asylum seekers and refugees in urban areas.

    · UNHCR should systematically gather statistics about the numbers of refugees living in urban environments in Kenya and Uganda.

To address the lack of a domestic legal framework for refugees

    · UNHCR should continue to encourage the governments of Kenya and Uganda to adopt domestic refugee legislation. It should also assist in the drafting process to ensure that the laws fully implement all governmental obligations towards asylum seekers and refugees under refugee and other forms of human rights law.

To address problems in the UNHCR-run refugee status determination system in Nairobi

    · UNHCR should provide all asylum seekers with written information in their own language on: i) the legal standards to be applied; ii) a realistic indicative timetable for each stage of the determination process; and iii) when applicable, detailed reasons for rejection. For purposes of accountability, both the asylum seeker and the officer conducting the interview should sign this written information indicating that it was transmitted and received.

    · UNHCR should post a notice board indicating by case number as made known to each asylum seeker (individual identities should not be disclosed) the progress of processing for each asylum seeker's file. If confidentiality concerns still prevent being able to post individualized tracking systems aligned with each asylum seekers' case number, then at least a generalized tracking system should be posted, indicating the progress of all files submitted on a given day.

    · UNHCR offices should have adequate personnel and resources so that status determinations are fair and efficient, keeping in mind the particular difficulties and needs of applicants.

To address the problem of secondary movement policies

    · UNHCR should not apply secondary movement policies to a refugee who was compelled to move because of specific protection or security problems in his or her previous country.

To address problems in the refugee status determination system in Kampala

    · UNHCR in Kampala should immediately cease using randomly chosen interpreters from among the refugee community during its interviews. Professional interpreters should be hired for each of the commonly spoken languages during determinations.

To address the problem of refoulement

    · One officer at UNHCR in Nairobi and Kampala should be identified to receive notices on asylum seekers or refugees who have been taken into the custody of the military or police and may face refoulement, and should respond to these referrals expeditiously.

To address the problems with camp confinement

    · UNHCR should urge the two governments to provide for exceptions to the camp confinement policies in domestic law or regulation, and should revise its own policy on urban refugees.

To address protection problems when asylum seekers and refugees first arrive in the capital cities

    · UNHCR and the governments of Kenya and Uganda should set up temporary reception sites for asylum seekers and refugees, providing them with safe shelter for at least the first two weeks that they are in Nairobi or Kampala. These temporary sites could be appropriate places for UNHCR to identify at-risk individuals.

    · UNHCR in Nairobi should engage the services of an implementing partner NGO to work in the registration sheds at the Branch Office in Nairobi to register and adequately identify all unaccompanied and separated children, women heads of household, and other individuals in need of specialized care or assistance during their first visit to the office. UNHCR in Kampala should provide the same services through its implementing partner, InterAid. After such registration and identification, all such asylum seekers or refugees should then be immediately referred to assistance and shelter programs.

    · UNHCR should deploy a team of staff members to rotate through the various neighborhoods housing refugees in Nairobi and Kampala in order to identify at risk individuals who may not have reached UNHCR's offices, and in order to intervene in urgent protection problems in the community, including at local police stations.

To address protection and assistance problems faced by asylum seeker and refugee children

    · UNHCR should work to ensure access to education for all refugee children, regardless of their location within a host country, and to the greatest extent possible given resource constraints.

    · In addition to registering refugee or asylum seeker children during their first contact with the office, UNHCR should ensure that refugee children within its protection areas in camps or housed in secure accommodations in urban areas have access to education.

    · Unaccompanied and separated refugee children who cannot be placed in appropriate foster care, but who are living in secure accommodations should have separate appropriate housing facilities or separated parts of housing facilities.

To address concerns about inadequate medical referrals in Nairobi

    · UNHCR in Nairobi should engage the services of an implementing partner NGO to work in the registration sheds at the branch office to examine and treat medical cases on the spot and make same-day referrals to either: i) an NGO medical clinic for treatment; or ii) a hospital for urgent care. The policy should allow referrals to be made for both asylum seekers and refugees.

    · To the extent possible, victims of torture and sexual violence should be identified during their first visit to UNHCR in Nairobi through the use of an implementing partner NGO engaged to assist in registering asylum seekers or refugees. However, since it will not be possible to identify all those in need in the public environment of the registration sheds, every asylum seeker or refugee should be handed a set of written (in all major relevant languages) directions to an implementing partner's offices where screening of torture victims and victims of sexual violence can be conducted in a private setting and where those in need of care can begin to be assisted immediately - well before the individual appears before a protection officer for a status determination interview. Referrals to psychotherapeutic treatment should also be available to other asylum seekers or refugees who need or request it.

To address concerns about inadequate medical referrals in Kampala

    · UNHCR in Kampala should increase the capacity of InterAid to offer quality medical treatment to all asylum seekers and refugees. Referrals to hospitals should be made on the spot; however, if an individual seeks treatment in a hospital for an urgent illness over the weekend or at a time when referrals from InterAid are not available, she should be reimbursed for her duly certified costs even if she did not receive an InterAid referral.

    · Referrals to a psychotherapeutic treatment center in Kampala should be made for all victims of torture and sexual violence, and for other refugees who might need or request such treatment, after the initial intake interviews with InterAid.

To address security problems

    · UNHCR in Nairobi and Kampala should establish a larger number of secure residences to house asylum seekers and refugees with security problems. Asylum seekers and refugees should be carefully vetted for potential security conflicts before they are housed in the same facility. Separate accommodation, or at least separate buildings and rooms lockable from the inside should be provided for unaccompanied and separated women and children.

    · UNHCR should designate an officer to review all complaints (submitted by police, NGO partners, or refugees themselves) of security concerns affecting refugees and to take one or a combination of several immediate protection actions, depending on the nature and severity of the problem: i) give the individual the option to participate in a periodic check-in program at UNHCR's offices, so that if he or she does not appear, action can be taken; ii) assist the individual in filing an official police report; iii) permit the individual to relocate to a refugee camp, settlement, or another town or village where he or she believes his or her security to be at a lesser risk; iv) refer the individual to UNHCR-run safe accommodation; v) refer the individual for resettlement consideration (using expedited procedures when necessary); vi) provide the individual with relocation assistance to another UNHCR office in another country within the region.

    · UNHCR in Kampala should pay particular attention to the security problems faced by refugees fleeing from Rwanda and the portions of the DRC that were controlled by Uganda, in the latter case since they may be under the control of the same authorities responsible for their original persecution. UNHCR should consider referring these cases on to another country for status determination and access to resettlement procedures.

To address resettlement delays and inefficiencies

    · UNHCR should put in place resettlement referral officers in both the Kampala and Nairobi UNHCR offices to prepare files of individuals for resettlement.

    · UNHCR should un-freeze regular resettlement referrals from UNHCR Nairobi as a matter of urgency.

    · UNHCR should process all Nairobi branch office backlogged files as a matter of urgency. If UNHCR is unable to process these files because of staffing limitations, the governments that had conditionally approved these cases for resettlement should designate embassy staff or deploy appropriately trained staff to re-vet these files immediately.

    · UNHCR should allow NGO personnel to send suggested cases for resettlement to the designated resettlement officers in Kampala and Nairobi, utilizing a standard referral form and applying mutually agreed-upon threshold criteria for referral.

To the United Kingdom and Rwandan Governments

    · The U.K. and Rwandan Government should ensure that the Joint Verification Commission does not impede the rights of asylum seekers to fair and confidential assessment of their asylum claims.

To Donor Governments

    · Donor governments should link some of the funding through the New Partnership for Africa's Development (NEPAD) to development initiatives that address the human rights and development needs of refugees, including those living in urban areas.

    · Donor governments should adequately fund protection and assistance programs in Kenya's and Uganda's refugee camps.

    · Donor governments should increase support for UNHCR and NGOs to provide protection, housing, food, education, and medical assistance to asylum seekers and refugees living in Kampala and Nairobi.

    · Donor governments should fund UNHCR and/or NGOs to provide safe accommodation, or at a minimum, adequate locks for the doors of the shelters of unaccompanied and separated children and women heads of household.

    · Donor governments should fund targeted training programs for magistrates and police officers on refugee and other forms of human rights law.

    · Donor governments should emphasize ensuring fair treatment of asylum seekers and refugees with security problems, particularly those from Rwanda and from Ugandan-controlled portions of the DRC when considering bilateral or multilateral lending to Uganda.

    · Donor governments should emphasize police anti-corruption initiatives and benchmarks in all bilateral and multilateral lending to Kenya.

    · Donor governments should seek improvements in UNHCR-run or government-run status determination processes, focusing in particular upon funding programs that seek to: provide information to asylum seekers and refugees and increase the transparency of the process; increase trained staff; provide trained interpreters; and improve the quality and efficacy of identity documentation issued to asylum seekers and refugees.

    · Donor governments should adequately fund a streamlined referral system to the existing psychotherapeutic treatment program for torture victims and victims of sexual violence in Nairobi, and should adequately fund a referral and treatment program for torture victims and victims of sexual violence in Kampala. Assistance should be given in order to make psychotherapeutic treatment available to all other asylum seekers and refugees who need or request it.



To Governments in Countries of Resettlement

    · Governments should allow NGO personnel to send suggested cases for resettlement simultaneously to UNHCR and to embassy personnel, utilizing a standard referral form and applying mutually agreed-upon threshold criteria for referral. If a government expresses interest in a case sent in this manner to its embassy, it should liaise with UNHCR to ensure that UNHCR processes the file expeditiously.

    · Governments with resettlement cases caught in the Nairobi office backlog should designate embassy staff or deploy appropriately trained staff to re-vet these files immediately.

    · Governments should put in place expedited referral procedures for high-risk cases. In the case of the United States, the existing such procedures should be brought into active use.

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