Court suspends state ban on Eritrean, Ethiopian refugee registrations

Congolese refugees line up to receive aid during a food distribution operation at the Musenyi refugee site in Giharo, on May 7, 2025. [AFP]

The High Court has stopped the government from implementing a directive that suspended registration and key services for asylum seekers from Eritrea and Ethiopia.

Justice Chacha Mwita issued conservatory orders barring the Commissioner for Refugee Affairs from enforcing the directive contained in a notice dated July 31, 2025, pending the hearing and determination of a constitutional petition filed by five human rights and refugee advocacy bodies.

“A conservatory order is hereby issued prohibiting the Commissioner for Refugee Affairs (the 1st respondent) or any other person acting under his instructions and/or directions from implementing the directive issued and dated July 31, 2025, suspending registration of asylum seekers of Eritrean and Ethiopian nationalities,” Justice Mwita ordered.

The judge temporarily suspended the policy restricting Eritrean and Ethiopian refugee registrations, ruling that the move poses a real risk of violating the Constitution and international refugee law.

The directive had also suspended exemption applications for processing change of address and data transfer that allow refugees to reside outside designated camps, and suspended the registration of so-called onward movers.

The case has been filed by Refugee Legal Networks, the Kenya National Commission on Human Rights, Refugee Consortium of Kenya, Kituo Cha Sheria and Sanctuary Foundation.

They argue that the directive is discriminatory, unconstitutional and exposes asylum seekers to arbitrary arrest, detention, deportation and refoulement.

The petitioners told the court that the directive discriminates against refugees and asylum seekers of Ethiopian and Eritrean origin living in Kenya on the basis of race, and that it undermines their ability to lawfully update their status and access rights guaranteed under the Constitution, the Refugees Act and international law.”

They maintained that the suspension, which is in place for an indeterminate period, is not anchored in the Refugees Act or subsidiary legislation.

“They also risk being returned either directly or indirectly to countries where they face persecution, armed conflict or serious human rights violations," they claim.

The court was also told that asylum seekers from the two countries are increasingly being treated as trafficking victims and removed without proper refugee status determination.

The petitioners complained that many present themselves at Kenya’s borders seeking protection.

"We are instead branded as victims of alleged human trafficking… apprehended and transported to police stations where they are placed in custody… later repatriated or removed from the country without due process in violation of the principle of non-refoulement," the court papers states 

They pointed to a Kapenguria court ruling in which the magistrate directed that 104 Eritrean and Ethiopian nationals should not be deported, removed or repatriated unless their refugee status had been assessed and formally communicated to them in writing.

In response, the State, through a replying affidavit by Mwasaru Mercy, defended the directive as a lawful administrative measure aimed at curbing abuse of the asylum system by traffickers and smugglers.

The government argued that the notice was issued pursuant to the commissioners’ mandate under sections 7 and 8 of the Refugees Act and is in line with international conventions and protocols to which Kenya is a signatory, regional practice and is not subject to public participation.

They further insisted that the measure is not a blanket ban on registration of Eritrean and Ethiopian asylum seekers.

The directive is applied on a case-by-case basis and, therefore, does not exclude genuine asylum seekers from the two countries," Mwasaru informed the judge.

They also maintained that under Article 33(2) of the Refugee Convention, state parties reserve the right to apply such internal and administrative measures as may be necessary in ensuring that the asylum process is not used by organized crime perpetrators.

However, in his ruling, Justice Mwita found that the petitioners had met the threshold for conservatory orders by demonstrating an arguable case and a real danger of prejudice if the directive remained in force during the pendency of the petition.

The judge stressed that at this stage the court was not required to reach conclusive findings on the legality of the directive, but only to assess whether the petition raises serious constitutional questions.

He noted that the petitioners had pointed out with reasonable precision the rights and fundamental freedoms in the Bill of Rights which they allege have been denied, violated or infringed or are even threatened including the right to equality and freedom from discrimination and the right to fair administrative action.

“It is the finding of this court, that considering the issues raised in the petition and without attempting to make definitive findings over the petition, the petitioners have disclosed arguable issues for consideration at the trial,” Justice Mwita said.

 “In short, it cannot be said that the issues raised in the petition are frivolous or unarguable.”