KITUO CHA SHERIA BLOG

“Before you judge a man walk a mile in their shoes”

Imagine yourself in this case scenario, where you have gone through school and qualified as an advocate, a doctor or an engineer in your home country, then war breaks out in your country or you experience certain circumstances that would make you fear that you may be subjected to persecution and you have to flee your country of origin and seek asylum.

As is the nature of the above mentioned circumstances, they are unpredictable and the reasons you fled your country is unresolved for a prolonged period. You find yourself in a place of vulnerability and because you have to adopt to this new situation decide to adjust and seek a livelihood in the country of asylum. You are well aware of your qualifications and as a result you start looking for jobs as is required, to sustain you and your family. The first step would be to apply for a work permit.

The process is very difficult and with every attempt you discover that it is almost impossible to obtain one. The system seems to have been designed to place you at a disadvantage despite all the vulnerabilities you already experience. The policy environment is very restrictive.

You come to the unfortunate realization that for the rest of the time you spend in that country of asylum you and your family will only have access to the informal sector, start a business or be condemned to receiving humanitarian aid for the rest of your time in the country of asylum.

Just imagine that! This is the reality of most refugees and asylum seekers all around the world.

Doctors, lawyers, teachers, engineers- persons with varying technical skills- many of whom are now either in refugee camps or stuck hawking in the streets or conducting various small business just to get by.

The Kenyan situation

Kenya’s refugee experience dates back to the early 1970s, when it hosted many Ugandans displaced by the political coups of the time. The influx of refugees into Kenya resumed in the early 1990s, triggered by conflict and insecurity in Somalia, Ethiopia, and the Great Lakes region. Among the refugee population currently living in Kenya- there are large numbers of refugees in situations of protracted displacement hosted by Kenya for more than 20 years; and refugee children who have been born and raised in Kenya.[1]

As such many of the refugees have integrated with Kenyans and have fostered strong relationships. However it seems as if the integration is only social and not economic. The restrictive policy environment surrounding wage earning employment in Kenya has made it almost impossible for a refugee to get a decent job even after years of socially integrating with members of the host Community.  

What is even more unfortunate is that refugees, who are forced migrants are treated the same as aliens if not worse and more so when it comes to economic inclusion and access to services.

Article 2(6) of the Constitution of Kenya, 2010 makes every treaty and convention Kenya has ratified part and parcel of Kenyan law and this includes the 1951 Convention, the 1967 Protocol and the 1969 OAU Convention- all related to refugees and asylum seekers.

It is of importance to note that refugees are human beings and are entitled to human rights in international and national legal systems of the host country except with respect to the rights that accrue to citizens only.

Article 17(1) of the Convention provides for wage-earning employment for Refugees lawfully in the country of asylum. Further Article 17(1) must also be read in light of Article 6 of the Convention, which, collectively, requires that refugees lawfully staying and who are entitled to wage-earning employment must be exempt from any requirements to obtain work permits if they are unable to meet those requirements due to the hardship that resulted from their forced displacement.

Traditionally, refugee response actors have intervened primarily through the provision of humanitarian aid. While humanitarian aid has an essential role to play in protecting the physical security of refugees; this alone is not enough. A comprehensive response mechanism must extend beyond short-term needs if it is to enable refugees to rebuild their lives and achieve self-sufficiency during displacement. This is why their access to wage earning employment is necessary.

Unfortunately, it has become common practice in Kenya for refugees to be subjected to the same preconditions to access work permits as those of economic migrants and foreigners which should not be the case because these are people who have been forced to leave their country of origin because of a well-known fear of persecution.^[2]

While fully well aware that the right to work is not absolute; the restrictions placed on the refugee applicants is not justifiable in an open and democratic court as indicated in Article 24 (1) of the Constitution of Kenya, 2010.

A brief summary of the application process is that the refugee is required to make an application to the Department of immigration and registration of persons. They do this through submission of a duly filled and signed Form 25 online form which is a standard form for all work permit applications. Further they would be required to present two copies of detailed and signed cover letter from the employer/organization/self, addressed to the Director of Immigration Services, copies of their passport in the case of refugees- this is the Conventional Travel Document, two(2) recent passport size coloured photos (for both new and renewal) ,their immigration status in the country; a valid organization Tax Compliance Certificate for new cases  and most importantly a recommendation letter from the Refugee Affairs Secretariat (RAS).

You will note that in the Form 25 one of the questions asked is ‘what steps have you taken to confirm that the skills/qualifications sought are not available locally?”.

This question already prejudices refugees and this is majorly because they are in the country of asylum seeking protection from that particular state. The possibilities of them having the same skill set as the people in the country of asylum are very high. This being the basis of denying them access to wage earning employment is not justifiable as it is almost unattainable. You may find that the only specialised skill would be that they can speak a different language- however this is not enough as we have many Kenyans who are multilingual.

What does this then mean?

This means that many refugees have been cut off from wage earning employment primarily based on the lack of understanding of their specific vulnerabilities and the reasons as to which they are in the country.

If the concerned ministry and government agencies are to understand that there is a very huge difference between refugees and other aliens applying for the work permits; they would feel the need to create specific guidelines that would address this group.

Access to safe and lawful employment is a fundamental human right. It applies to all persons, including refugees and asylum seekers, and with good reason. When permitted to engage in safe and lawful work, an individual may fulfil his or her basic survival needs and contribute to the needs of the family, community and the country in which they reside. The realization of the right is the means through which the individual may achieve a range of other rights, fulfilling the human desire to feel useful, valued and productive.

In the South African Supreme Court of Appeal observed in the case of  Minister of Home Affairs v. Watchenuka (2004) 1 All SA 21, per Jugent JA, para. 27 the learned Justice stated:

“The freedom to engage in productive work – even where that is not required in order to survive – is indeed a part of human dignity for mankind is pre-eminently a social species with an instinct for meaningful association. Self-esteem and the sense of self-worth– the fulfilment of what it is to be human – is most often bound up with being accepted as socially useful”.

Furthermore, with the adoption of the 2030 Agenda for Sustainable Development, 193 United Nations Member States- including Kenya- pledged to ensure “no one will be left behind” and to “endeavour to reach the furthest behind first”.

In practice, this means taking explicit action to end extreme poverty, curb inequalities, confront discrimination and fast-track progress for the furthest behind.

People are left behind when they lack the choices and capabilities that enable others to participate in or benefit from human development. This can be due to their experience of:

1.  Absolute deprivation, where they live in multi-dimensional poverty or below other minimally accepted standards of security, income, public services, infrastructure or well-being; and
2. Relative disadvantage, where they face exclusion, discrimination and/or entrenched inequalities; are less able to gain influence, get an education  survive setbacks, acquire wealth, access job markets or technologies; have shorter, riskier lives; rank below median in SDG outcomes and opportunities^[3].

With the acknowledgement of the numerous groups in the country that may be left behind, refugees and asylum seekers are still a part of them. Refugees being part of our society for over 20 years we cannot continue to ignore the need for them to earn a living through wage earning employment.

Lack of knowledge and information is a powerful barrier to tackling the disadvantages, deprivations and discrimination that leave refugees out of the job market. The Government has the mandate to manage refugees in Kenya and as such providing an enabling environment for them to access the labour markets through wage earning employment.

In addressing this; the Department of Immigration should look into categorically differentiating refugees from economic migrants not only as to the class of permits issued, but in the administrative process. Asking of new skills being brought into the country by a refugee is asking far too much from a vulnerable population that has been forced to flee their country of origin.

The restrictive policy environment is what leads to the refugee population being over reliant on humanitarian aid and government support and as such it denies well able people to participate in growth of our economy as employers, employees, taxpayers, and innovators.

When refugees work and become self-reliant, the cost to host governments and partner organizations accruing to hosting refugees declines or completely disappears. The more barriers refugees face accessing the labour market; the less they can contribute and the greater the costs to refugees and those supporting them.^[4]

Kenya should be reminded that work is an international human right, available to refugees lawfully in and lawfully staying in a country of asylum; and not merely an entitlement that may be extended or withheld as a matter of government policy or discretion.

Advocacy around this area is paramount as we cannot continue to ignore the fact that refugees too are a part of us and they deserve the opportunity to contribute to the economic growth of this country. This year Kenya and the world are reminded that everyone, including refugees, can contribute to society and Every Action Counts in the effort to create a more just, inclusive, and equal world.

#EveryActionCounts

By:

Charity Wangui, Advocate

Legal Officer

Forced Migration Programme -Kituo cha Sheria

[1] Refugees’ Right to Work and Access to Labour Markets – An Assessment*+]Roger Zetter and Héloïse Ruaudel† September 2016

[2] Section 3 of the Refugee Act No. 13 of 2006

[3] WHAT DOES IT MEAN TO LEAVE NO ONE BEHIND? A UNDP discussion paper and framework for implementation July 2018, http://www.undp.org/content/dam/undp/library/Sustainable%20Development/2030%20Agenda/Discussion_Paper_LNOB_EN_lres.pdf

[4]The Economic and Fiscal Effects of Granting Refugees Formal Labor Market Access by  Michael Clemens, Cindy Huang, and Jimmy Graham pg.5