REFUGEE PROTECTION AND ASYLUM RIGHTS IN KENYA: ACOMPARATIVE ANALYSIS WITH INDIA’S CITIZENSHIP FRAMEWORK

Abstract 

Kenya hosts over 854,000 refugees and asylum seekers primarily in Dadaab and Kakuma camps making it one of Africa’s largest refugee hosting nations. The recent enactment of the  Refugees Act 2021 and the Refugees (General) Regulations 2024 mark a significant shift from  Kenya’s longstanding encampment policy towards a more progressive framework emphasizing  integration and socioeconomic inclusion. However persistent challenges including freedom of  movement restrictions work permit barriers and the controversial camp closure threats reveal  substantial implementation gaps between legislative promise and practical reality. This article  examines Kenya’s evolving refugee and asylum framework with particular focus on the  contentious issues of encampment policy citizenship pathways and the tension between  security concerns and human rights obligations. Through comparative analysis with India’s  discriminatory Citizenship Amendment Act 2019 this article demonstrates how religious  exclusions and selective protection mechanisms undermine the fundamental principle of non 

discrimination in refugee law. The article argues that while Kenya’s legal framework shows  progressive intent its execution requires substantial reform to align with international standards  and that both Kenya and India must adopt inclusive non discriminatory approaches to refugee  protection that honor their commitments under international law. 

Introduction 

Kenya occupies a unique position in global refugee protection. Located in a region marked by  protracted conflicts and political instability the country has provided sanctuary to refugees for  decades. As of June 2025 Kenya hosts approximately 854,876 refugees and asylum seekers  with 50.6% residing in Dadaab refugee camp 35.9% in Kakuma refugee camp and 13.5% in  urban areas.1 

The enactment of the Refugees Act 20212followed by the Refugees (General) Regulations  20243represents a watershed moment in Kenya’s approach to refugee management. These  legislative instruments signal a departure from the restrictive encampment policy that has  defined Kenya’s refugee regime since the early 1990s toward a framework that theoretically  promotes integration freedom of movement and self-reliance. Yet the implementation of this progressive legislation has been marred by persistent challenges including bureaucratic  obstacles inadequate funding and political resistance particularly manifested in repeated  government threats to close Dadaab and Kakuma camps. 

This article explores the pressing issues within Kenya’s immigration and asylum system with  particular emphasis on three controversial dimensions: the encampment policy and its  restrictions on freedom of movement the inadequate pathways to citizenship and permanent  solutions for refugees and the persistent security versus humanitarian rights tensions that have  culminated in camp closure threats. The article employs a comparative methodology examining  India’s refugee framework particularly the controversial Citizenship Amendment Act 20194to  illustrate how religious discrimination and selective protection mechanisms undermine  fundamental principles of refugee law. 

The article proceeds in five parts. Part II examines Kenya’s legal framework for refugee  protection including the Refugees Act 2021 and the implementing regulations. Part III analyzes  the most pressing and controversial issues including encampment policy freedom of movement  restrictions and camp closure threats. Part IV provides a comparative analysis with India’s  citizenship framework highlighting the discriminatory nature of India’s approach. Part V offers  critical analysis and recommendations for reform. Part VI concludes with reflections on the  need for comprehensive inclusive refugee protection frameworks that honor international  obligations while addressing legitimate security concerns. 

1.3 Scope of Analysis 

This report examines the pressing legal and operational challenges within Kenya’s asylum  system. It specifically analyzes three contentious dimensions: the persistence of the  encampment policy despite statutory guarantees of movement; the legal lacunae blocking  pathways to citizenship and the tension between national security rhetoric and human rights  obligations. Additionally, the report offers a comparative analysis of India’s refugee  framework, specifically the Citizenship Amendment Act 2019 to highlight the dangers of  discriminatory protection mechanisms. By contrasting Kenya’s struggle for implementation  with India’s structural exclusion, the analysis underscores the necessity of non-discriminatory  legal frameworks.  

Kenya’s Legal Framework for Refugee Protection 

The Refugees Act 2021

The Refugees Act 2021 represents Kenya’s most comprehensive legislative attempt to align  domestic refugee law with international standards.5 The Act repealed the outdated Refugees  Act 2006 and established a modernized framework for refugee recognition protection and  management. The Act creates institutional mechanisms including the Commissioner for  Refugee Affairs and the Refugee Status Appeals Committee to oversee refugee affairs and  ensure accountability. 

Section 12 of the Act establishes the procedure for seeking asylum in Kenya. An individual  seeking recognition as a refugee must apply to the Commissioner for Refugee Affairs who is  responsible for receiving and processing applications.6 The Act mandates that applicants be  permitted to remain in Kenya pending determination of their applications thereby incorporating  the principle of non-refoulement into domestic law.7 

Critically the Act recognizes both individual refugee status determination and the possibility  of prima facie recognition for groups fleeing mass displacement. The Cabinet Secretary may  on the advice of the Refugee Advisory Committee declare any class of persons to be prima  facie refugees. This mechanism acknowledges the practical realities of mass influx situations  where individualized status determination may be impractical. However the Act  simultaneously maintains restrictions on where refugees may reside specifying designated  areas and requiring refugees to obtain movement passes to travel outside these areas.8 

The Refugees (General) Regulations 2024 

The Refugees (General) Regulations 2024 operationalize the Refugees Act 2021 by providing  detailed procedural mechanisms for registration refugee status determination and refugee  management.9 The Regulations establish clear timelines including a requirement that asylum  seekers submit their applications within fourteen days of initial notification10 and that the  Commissioner make determinations within ninety days after receiving applications.11 

The Regulations mandate issuance of asylum seeker passes valid for ninety days and establish  comprehensive procedures for refugee status determination interviews.12 Asylum seekers have  the right to legal representation at their own cost and decisions on applications must be  communicated in writing within fourteen days. The Regulations also provide for appeals to the  Refugee Status Appeals Committee ensuring procedural safeguards consistent with  international standards. 

Despite these procedural improvements the Regulations maintain the controversial  encampment approach. They empower the Cabinet Secretary to declare specific areas as transit or reception centres and implicitly maintain the policy of confining refugees to designated  camps. This represents a fundamental tension within the legal framework between progressive  rhetoric on integration and the practical reality of continued spatial restriction. 

International Legal Obligations 

Kenya is a state party to both the 1951 Convention Relating to the Status of Refugees and its  1967 Protocol13 as well as the 1969 OAU Convention Governing the Specific Aspects of  Refugee Problems in Africa.14 These instruments impose binding obligations on Kenya  including the principle of non-refoulement which prohibits the return of refugees to territories  where their life or freedom would be threatened. 

The 1951 Convention also guarantees refugees certain socioeconomic rights including the right  to work freedom of movement and access to education and healthcare. Article 26 specifically  protects freedom of movement stating that each contracting state shall accord to refugees  lawfully in its territory the right to choose their place of residence and to move freely within  its territory subject only to regulations applicable to aliens generally. Kenya’s encampment  policy appears to contradict this obligation by confining refugees to designated camps and  requiring special permits for movement. 

The OAU Convention expands the refugee definition beyond the 1951 Convention to include  persons fleeing external aggression occupation foreign domination or events seriously  disturbing public order. This broader definition reflects African realities of mass displacement  and collective persecution. Kenya’s Refugees Act 2021 incorporates this expanded definition  thereby harmonizing domestic law with regional obligations. However the practical  implementation of these protections remains inconsistent and inadequate as explored in the  following section. 

III. Pressing Issues in Kenya’s Refugee and Asylum System 

Encampment Policy and Freedom of Movement Restrictions 

The most controversial aspect of Kenya’s refugee management is the encampment policy which  has been in effect since the early 1990s. This policy requires refugees to reside in designated  camps located in remote areas far from urban centers and economic opportunities. Dadaab  refugee complex in Garissa County and Kakuma refugee camp in Turkana County are the two  main camps hosting the vast majority of Kenya’s refugee population.15 The camps were established as temporary emergency measures but have evolved into semi-permanent  settlements with second and third generation refugees born and raised within their confines. 

The encampment policy severely restricts refugees’ freedom of movement. Under the Refugees  Act 2021 refugees are required to reside in designated areas and movement outside these areas  requires obtaining a movement pass from the Commissioner. In practice refugees found outside  camps without proper documentation face arrest detention and potential deportation. This  restriction has profound implications for refugees’ ability to pursue livelihoods education and  integration into Kenyan society.16 

The policy has been criticized as incompatible with Kenya’s obligations under the 1951  Refugee Convention particularly Article 26 which guarantees freedom of movement.17 The  restriction to designated areas limits refugees’ access to employment opportunities markets and  education. It perpetuates dependency on humanitarian aid and prevents refugees from  becoming self-reliant contributors to the local economy. Research demonstrates that camps  have negatively impacted the environment and that encampment prevents meaningful  economic integration.18 

Moreover the encampment policy has social and psychological consequences. Confinement in  camps fosters a sense of exclusion and perpetuates the notion of refugees as temporary burdens  rather than potential contributors to society. The policy reinforces xenophobic sentiments by  physically separating refugees from host communities creating an us versus them dynamic. For  refugees who have lived in camps for decades or who were born there the lack of integration  pathways represents a denial of basic human dignity and opportunity. 

Threatened Closure of Dadaab and Kakuma Camps 

The Kenyan government has repeatedly threatened to close Dadaab and Kakuma refugee  camps citing national security concerns and the economic burden of hosting refugees. In March  2021 the government issued a fourteen-day ultimatum to the United Nations High  Commissioner for Refugees to develop a plan for camp closure threatening forced repatriation  if the deadline was not met.19 Similar threats have been made periodically including in 2016  when the government sought to close Dadaab camp before the High Court intervened. 

In March 2024 the High Court of Kenya once again halted government plans to close the camps  ruling that such closure would violate refugees’ rights and Kenya’s international obligations.20 The court emphasized that it would be unfair for Kenya to welcome those fleeing war and  human degrading scenarios only to later expel them from their safe haven. This judicial intervention underscores the tension between executive action driven by security and political  considerations and legal obligations under constitutional and international law. 

The threatened closures raise serious concerns about refoulement. Many refugees in Dadaab  fled Somalia’s civil war and ongoing insecurity. Forcing them back to Somalia where  conditions remain dangerous would violate the principle of non-refoulement enshrined in both  the 1951 Refugee Convention and Kenya’s domestic law. For refugees born in the camps Kenya  is often the only home they have ever known. Forced repatriation would uproot hundreds of  thousands of people subjecting them to persecution violence and deprivation in their countries  of origin. 

Beyond the humanitarian crisis closure threats reveal the Kenyan government’s ambivalence  toward refugees. While the Refugees Act 2021 espouses integration and inclusion government  rhetoric often frames refugees as security threats and economic burdens. This contradiction  between progressive legislation and regressive executive action undermines Kenya’s  commitment to refugee protection and signals uncertainty about the future of the Shirika Plan  an ambitious initiative to transform camps into integrated settlements. 

Barriers to Citizenship and Integration 

Even for refugees who have resided in Kenya for decades pathways to citizenship remain  elusive. Article 15(1) of the Kenyan Constitution provides that a person married to a Kenyan  citizen for seven or more years is entitled to apply for citizenship.21 However the Citizenship  and Immigration Act does not recognize refugee identification documents as proof of lawful  residence thereby denying refugees the right to apply for citizenship on the same basis as other  foreign nationals.22 

This legal contradiction creates situations where refugees married to Kenyan citizens and with  children who are Kenyan nationals remain trapped in refugee status unable to integrate fully  into society.23 The Refugees Act 2021 states that refugees must be granted the same rights and  privileges as other foreign nationals but this promise is undermined by contradictory provisions  in the Citizenship Act. The result is a perpetual limbo where refugees cannot return to their  countries of origin but also cannot secure permanent status in Kenya. 

The lack of integration pathways is particularly problematic for second and third generation  refugees born in Kenya. These individuals have no meaningful connection to their parents’  countries of origin yet are denied Kenyan citizenship and the attendant rights to work own property and move freely. This denial of citizenship perpetuates cycles of marginalization and  exclusion preventing refugees from contributing fully to Kenyan society and economy. 

1. Inadequate Implementation of the Shirika Plan 

The Shirika Plan represents an ambitious initiative by the Kenyan government and UNHCR to  transform refugee camps into integrated settlements allowing refugees and host communities  to live and work side by side. The plan envisions providing refugees access to government  services employment opportunities and freedom of movement within designated counties.  However implementation of the Shirika Plan has been slow and plagued by uncertainty.24 

Critical questions remain unanswered including what form of identification refugees will need  to access public services whether refugees will be permitted to travel beyond Garissa and  Turkana counties and how work permits will be issued.25 The government has been silent on  these issues fueling skepticism among refugees and humanitarian organizations about the plan’s  viability. Moreover the Shirika Plan is not anchored in law meaning it could be abandoned or  modified without legislative oversight. 

Refugees in Dadaab have reported deteriorating conditions including declining food quality  inadequate healthcare and lack of water.26 These conditions contrast sharply with the lofty  promises of the Shirika Plan. Without concrete timelines adequate funding and clear legal  frameworks the plan risks becoming another unfulfilled promise leaving refugees trapped in  protracted displacement with neither integration nor repatriation as viable options. 

Comparative Analysis: India’s Discriminatory Citizenship Framework 

India’s Lack of Comprehensive Refugee Law 

Unlike Kenya which has enacted comprehensive refugee legislation India lacks a domestic  legal framework for refugee protection. India is not a signatory to the 1951 Refugee Convention  or its 1967 Protocol. As a result India has no legal obligation under international law to provide  protection to refugees and asylum seekers. The absence of domestic refugee law means that  refugees in India are treated as illegal migrants under the Foreigners Act 1946 which gives  authorities broad powers to detain and deport foreigners.27 

Despite this legal vacuum India has historically provided refuge to various communities  including Tibetan refugees following the 1959 uprising and Sri Lankan Tamil refugees.  However protection has been ad hoc and discretionary rather than rights-based. The absence of formal asylum procedures means that refugees lack legal status and are vulnerable to arbitrary  detention deportation and exploitation. 

The Citizenship Amendment Act 2019: Religious Discrimination 

The Citizenship Amendment Act 2019 introduced a religion-based pathway to Indian  citizenship representing a fundamental departure from India’s secular constitutional  framework. The Act fast-tracks citizenship for Hindus Sikhs Buddhists Jains Parsis and  Christians from Pakistan Bangladesh and Afghanistan who entered India on or before  December 31 2014.28 The Act explicitly excludes Muslims making it India’s first religion-based  citizenship law since independence. 

The Act’s discriminatory nature has been widely criticized by human rights organizations  international bodies and opposition parties. Critics argue that the Act violates Article 14 of the  Indian Constitution which guarantees equality before the law29 and undermines India’s secular  character. The United Nations High Commissioner for Human Rights expressed concern  calling the Act a breach of India’s international human rights obligations.30 

The implementation of the CAA began in March 2024 when the government notified the  Citizenship Amendment Rules 2024. By May 2024 the first batch of 14 refugees received  citizenship certificates under the Act.31 The timing of implementation just weeks before  national elections raised suspicions that the Act was being used as a political tool to mobilize  Hindu nationalist sentiments. 

The CAA also excludes other persecuted groups such as Rohingya Muslims Ahmadis Hazaras  and Sri Lankan Tamils who constitute the largest refugee group in India.32 By selectively  granting citizenship based on religion the Act fails to protect all persecuted individuals contrary  to the fundamental principle that refugee protection should be based on need not identity. 

Comparative Insights: Non-Discrimination and Inclusion 

The comparison between Kenya’s and India’s approaches to refugee protection reveals critical  lessons about the importance of non-discriminatory inclusive legal frameworks. While Kenya’s  Refugees Act 2021 provides comprehensive protection without distinction based on religion  ethnicity or nationality India’s CAA explicitly discriminates on religious grounds. Kenya’s  framework aligns with international standards by recognizing refugees based on persecution  without imposing religious or ethnic criteria. India’s framework by contrast undermines the core principle that refugee status should be determined by persecution not by the refugee’s  identity. 

However both countries face implementation challenges. Kenya’s progressive legislation has  not translated into meaningful freedom of movement integration or citizenship pathways for  refugees. India’s discriminatory legislation has sparked mass protests legal challenges and  international condemnation.33 Both cases demonstrate that legal frameworks alone are  insufficient without political will adequate resources and genuine commitment to refugee  protection. 

The experiences of Kenya and India underscore the need for refugee policies grounded in  international law principles particularly non-discrimination and non-refoulement. Refugee  protection must be based on need not on the convenience or political calculations of host states.  Selective protection whether through encampment policies that restrict freedom of movement  or through religion-based citizenship criteria ultimately undermines the integrity of refugee law  and leaves vulnerable populations without recourse. 

Critical Analysis and Recommendations 

Addressing Freedom of Movement Restrictions 

Kenya must urgently reform its encampment policy to bring it into compliance with  international obligations under the 1951 Refugee Convention. The restriction of refugees to  designated camps violates Article 26 of the Convention which guarantees freedom of movement. The government should allow refugees to reside and work anywhere in Kenya  subject only to regulations applicable to other foreign nationals. This would enable refugees to  pursue livelihoods integrate into local communities and contribute to the Kenyan economy. 

The Shirika Plan offers a framework for such reform but it must be anchored in law with clear  timelines and enforceable provisions. The plan should guarantee refugees access to national  identification documents work permits and freedom of movement within and beyond Garissa  and Turkana counties. Legislative amendments to the Refugees Act and Citizenship Act are  necessary to remove contradictions and provide clear pathways to integration. 

Ensuring Non-Refoulement and Abandoning Camp Closure Threats 

The Kenyan government must abandon threats to close Dadaab and Kakuma camps and  commit to upholding the principle of non-refoulement. Camp closures without durable solutions in place would constitute a violation of Kenya’s obligations under the 1951 Refugee  Convention and the OAU Convention. The government should instead focus on improving  camp conditions providing refugees with access to education healthcare and economic  opportunities and working with UNHCR and international donors to secure sustainable  funding. 

Judicial intervention by the High Court has been crucial in preventing arbitrary camp closures.  The judiciary must continue to serve as a check on executive action ensuring that refugee rights  are protected even in the face of political pressure. Civil society organizations should also play  an active role in monitoring government compliance with international obligations and  advocating for refugee rights. 

Creating Pathways to Citizenship 

Kenya should establish clear legal pathways for long-term refugees to acquire citizenship  particularly for those born in Kenya or married to Kenyan nationals. Legislative amendments  to the Citizenship and Immigration Act should recognize refugee identification documents as  proof of lawful residence enabling refugees to apply for citizenship on the same basis as other  foreign nationals. Naturalization procedures should be transparent accessible and free from  discrimination. 

For second and third generation refugees citizenship by birth or descent should be considered.  These individuals have no connection to their parents’ countries of origin and denying them  citizenship perpetuates statelessness and marginalization. The government should also consider  granting citizenship to refugees who have made significant contributions to Kenyan society  including through employment entrepreneurship and community service. 

Lessons for India: Adopting Inclusive Non-Discriminatory Frameworks 

India must repeal the discriminatory provisions of the Citizenship Amendment Act 2019 and  adopt a comprehensive non-discriminatory refugee law. The current framework which  excludes Muslims and other persecuted groups violates fundamental principles of equality and  non-discrimination enshrined in India’s Constitution and international human rights law. India  should ratify the 1951 Refugee Convention and establish an asylum system that provides  protection based on persecution not religious or ethnic identity. 

An inclusive refugee framework would enhance India’s standing as a regional leader and  demonstrate commitment to human rights. It would also provide legal protection to vulnerable groups currently left in limbo including Rohingya Muslims and other refugees who face  persecution but are excluded under the CAA. Legislative reform should include establishing  transparent asylum procedures guaranteeing access to legal representation and ensuring that  refugee status determination is conducted fairly and expeditiously. 

Conclusion 

Kenya stands at a crossroads in its approach to refugee protection. The enactment of the  Refugees Act 2021 and the Refugees (General) Regulations 2024 demonstrates legislative  ambition to modernize refugee management and promote integration. However persistent  challenges including the encampment policy freedom of movement restrictions and threats to  close refugee camps reveal a substantial gap between legal promise and practical reality. The  Shirika Plan offers a pathway forward but its success depends on political will adequate  funding and legal anchoring. 

The comparison with India’s discriminatory Citizenship Amendment Act underscores the  importance of non-discriminatory inclusive refugee frameworks. Both Kenya and India must  honor their obligations under international law and recognize that refugee protection is a moral  and legal imperative not a matter of political convenience. Selective protection whether through  spatial confinement or religious exclusion undermines the integrity of refugee law and leaves  vulnerable populations without recourse. 

Ultimately refugee protection requires more than legislation. It requires genuine commitment  to human rights principles recognition of refugees as agents of development rather than burdens  and willingness to invest in integration pathways that enable refugees to contribute to host  societies. Kenya has the legislative framework to lead Africa in progressive refugee protection.  The task now is to translate that framework into reality ensuring that the rights enshrined in the  Refugees Act 2021 are not merely aspirational but are realized in the lived experiences of  refugees seeking sanctuary in Kenya. 

Reference(S): 

1. Refugee Affairs Secretariat, Kenya, Refugee Statistics (June 30, 2025). 
2. The Refugees Act, 2021, No. 10 of 2021 (Kenya). 
3. The Refugees (General) Regulations, 2024, Legal Notice No. 39 of 2024 (Kenya). 
4. The Citizenship (Amendment) Act, 2019, No. 47 of 2019 (India). 
5. The Refugees Act, 2021, § 1 (Kenya). 
6. The Refugees Act, 2021, § 12(1) (Kenya). 
7. The Refugees Act, 2021, § 4(1) (Kenya).
8. The Refugees Act, 2021, § 16(2) (Kenya). 
9. The Refugees (General) Regulations, 2024, Reg. 1 (Kenya). 
10. The Refugees (General) Regulations, 2024, Reg. 5(3) (Kenya). 
11. The Refugees (General) Regulations, 2024, Reg. 14(1) (Kenya). 
12. The Refugees (General) Regulations, 2024, Reg. 7(1) (Kenya). 
13. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137. 
14. OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept. 10, 1969, 1001  U.N.T.S. 45. 
15. Refugees International, Lessons and Recommendations for Implementing Kenya’s New Refugee Law (Aug. 7,  2024). 
16. The Refugees Act, 2021, § 16(2) (Kenya). 
17. The New Humanitarian, Could Kenya be the next refugee rights champion? (May 23, 2024). 18. Refugees International, The New Refugee Act in Kenya and What it Means for Refugees (June 3, 2024). 19. Proposed Closure of Kenya’s Dadaab and Kakuma Refugee Camps ‘Reckless’, ReliefWeb (Mar. 24, 2021). 20. Court bars State from closing Dadaab and Kakuma refugee camps, The Standard (Mar. 28, 2024). 21. Kenya Const. art. 15(1). 
18. The Citizenship and Immigration Act, Cap. 170 (Kenya). 
19. The New Humanitarian, Could Kenya be the next refugee rights champion? (May 23, 2024). 24. Refugees International, Lessons and Recommendations for Implementing Kenya’s New Refugee Law (Aug. 7,  2024). 
20. The New Humanitarian, Dadaab Voices: Kenya’s flagship refugee plan marred by lack of consultation (Sept.  12, 2024). 
21. The New Humanitarian, Dadaab Voices: Kenya’s flagship refugee plan marred by lack of consultation (Sept.  12, 2024). 
22. The Foreigners Act, 1946, No. 31 of 1946 (India). 
23. The Citizenship (Amendment) Act, 2019, No. 47 of 2019 (India). 
24. India Const. art. 14. 
25. Amnesty International, India: Citizenship Amendment Act is a blow to Indian constitutional values and  international standards (Mar. 20, 2024). 
26. Library of Congress, India: Government Begins Implementing Controversial Citizenship Amendment Act (June 2, 2024). 
27. Amnesty International, India: Citizenship Amendment Act is a blow to Indian constitutional values and  international standards (Mar. 20, 2024). 
28. Human Rights Watch, India Activates Discriminatory Citizenship Law (Mar. 15, 2024).