1. Populations of concern: data and statistics

1.1 Whether government registers refugees and asylum seekers, and if so, with which registration tool?

1. The Malawi Government registers refugees and asylum seekers in the country, as part of the Refugee Status Determination (RSD) process although the specific format of registration is not very clear from the legislation and regulations. The RSD process is provided for under section 6 of the Refugees Act, No. 3 of 1989. Further, section 13 of the Refugees Act provides that:

2. It emerges therefore, from the text of this provision, that one of the purposes which the Refugees Act has prescribed in respect of the making of regulations under the Act is to ensure, under section 13(v), “the registration of refugees.”

3. According to the Government of Malawi’s Refugee Status Determination Standard Operating Procedures (SOP), “Persons wishing to apply for refugee status must complete an Application for Refugee Status at the time of registration with the Government of Malawi.”¹

4. Malawi implements a refugee encampment policy and the vast majority of refugees and asylum seekers reside at Dzaleka refugee camp where they receive protection and assistance from the Government of Malawi the UNHCR and other partners.² Every asylum seeker and refugee at the Camp is duly registered by both the Malawi Government and the UNHCR.

5. In a UNHCR and World Food Programme (WFP) Joint Assessment,³ the two organisations’ research showed that:

   The Government has a transit facility at Karonga in the northern part of Malawi bordering with Tanzania, where basic biodata of new arrivals is collected. The information is transmitted to the camp for subsequent status determination and electronic registration in the ProGres system managed by UNHCR. Once properly registered all families are issued with family ration cards, as well as refugee (when they have been granted refugee status) and asylum seeker ID cards if the RSD decision is pending. Under the continuous registration process, ProGres is regularly updated by recording births, deaths, family reunifications, voluntary return and spontaneous departures, where information is available.⁴

6. Asylum seekers, when applying for refugee status in Malawi, complete Form I made under Regulations 2 (1); 5 (1); 7 (1) and (2); and Regulation 2 (1) of the Refugee Regulations. The Form is designed for registration purposes and it captures very comprehensive information about the refugee, his/her family and their circumstances.

1.2 The refugee population registered at the end of the year

According to UNHCR Records, as of 2022, Malawi has approximately 32,216 registered and recognized refugees.⁵

1.3 Asylum seeking population registered at the end of the year; provide age and gender breakdown if available

As of 2022, Malawi has approximately 22,584 asylum seekers.⁶

1.4 Number of naturalized refugees at the end of the year

Malawi did not register any case of refugee naturalisation as at the end of November, 2022.

1.5 Number of repatriated refugees at the end of the year, with a breakdown per nationality.

[Information not obtained]

1.6 Number of refugees at the end of the year, who departed for resettlement

1. [Number not ascertained]

2. However, the Malawi Government and the UNHCR Malawi Office have an active refugee resettlement programme. According to the UNHCR, Resettlement remains an important primary protection tool for refugees with identified needs in Malawi. In this regard, Malawi is committed to ensuring that 10% of refugees who were identified to be in need of resettlement in the 2022 Projected Global Resettlement Needs report (PGRN) are submitted to the relevant authorities in the prospective resettlement countries.⁷

3. The UNHCR further reports that Malawi focuses on:

   “Complementary Pathways in line with the Global Compact on Refugees (GCR) by advocating for family reunification and third-country education opportunities, including supporting the World University Service of Canada (WUSC) program. Malawi has also been assisting and facilitating family reunification for eligible refugees by verifying data, facilitating contact, and securing necessary documentation.”⁸

1.7 Number of ceased refugees at the end of the year, with a breakdown per nationality.

[Number not ascertained]

2. Legal framework

2.1. International instruments

Malawi is a State party to the 1951 UN Convention Relating to the Status of Refugees, acceded to on 10^th December, 1987; the 1967 UN Protocol Relating to the Status of Refugees, acceded to on 10^th December, 1987; and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa ratified on 04^th November, 1987.

2.1.1 List of reservations entered by Malawi under the 1951 Convention on the Status of Refugees (the 1951 Convention)

4. Malawi made a wide range of reservations when it acceded to the 1951 Convention. These reservations have not been removed to date. The following are the reservations that Malawi entered:

   In respect of articles 7,⁹ 13,¹⁰ 15,¹¹ 19,¹² 22,¹³ and 24,¹⁴ the Government of the Republic of Malawi (Government of Malawi ) reservation is that it "considers these provisions as recommendations only and not legally binding obligations.

5. In respect of article 17, its reservation is that Malawi does not consider itself bound to grant a refugee who fulfils any of the conditions set forth in subparagraphs (a) to (c) to paragraph (2) of article 17 automatic exemption for the obligation to obtain a work permit. Further, in respect of article 17 as a whole, the Government of Malawi does not undertake to grant to refugees rights of wage earning employment on more favourable terms than those granted to aliens (foreign nationals) generally.

6. As regards article 26 of the 1951 Convention, the Government of Malawi stated that it “reserves its right to designate the place or places of residence of the refugees and to restrict their movements whenever considerations of national security or public order so require.”

7. Finally, in respect of article 34 of the Convention, the Government of Malawi stated that it “is not bound to grant to refugees any more favourable naturalization facilities than are granted, in accordance with the relevant laws and regulations, to aliens generally.”

2.2. National law

2.2.1 Legislation and regulations related to asylum, refugee protection and migration.

The following are important pieces of legislation, including regulations related to the protection of asylum seekers, refugees and other migrants in Malawi:

1. The Refugees Act (Cap 15:04 of the Laws of Malawi), Act No. 3 of 1989.¹⁵ There are also regulations made under the Refugees Act, namely:

   1. Refugee Regulations, promulgated under Government Gazette General Notice No. 51 of 1990.

2. Immigration Act (Cap 15:03 of the Laws of Malawi), Act. No. 20 of 1964.¹⁶ There are also the following Regulations made under the Immigration Act:

   2. Immigration Regulations, Under Government Gazette General Notice No. 148 of 1987 (as amended from time to time).

   3. Immigration (Disciplinary) Regulations, Under Government Gazette General Notice No. 42 of 1991.

3. Malawi Citizenship Act (Cap 15:01 of the Laws of Malawi), Act. No. 28 of 1966.¹⁷ In addition, the following Regulations have been made and promulgated under the Malawi Citizenship Act:

   1. Malaŵi Citizenship (Prescribed Languages) Regulations, Under Government Gazette General Notice No. 222 of 1966, as amended by Gazette General Notice No. 206 of 1968.

   2. Malaŵi Citizenship (Forms and Fees) Regulations, Under Government Gazette General Notice No. 221 of 1966, as amended by Gazette General Notice No. 19 of 2011 and Gazette General Notice No. 21 of 2014.

2.2.2 Major judicial decisions related to asylum and refugee protection.

There are a few notable decisions in the area of asylum and refugee protection in Malawi. The following are some key decisions to note:

1. Aden Abdihaji & 67 Others v Republic.¹⁸ This is an important decision on, among others, the application of the principle of non-refoulement and is implications on the fundamental principles of the Constitution of Malawi, as well as the requirement for non-criminalisation of asylum seekers for illegal entry.

2. Kambiningi Jones and Others v Refugee Committee.¹⁹ This is an important decision on the issue of revocation of refugee status on account of activities that threaten national security, etc.

3. Republic v Abdul Rahman & Others.²⁰ A decision by a Magistrate Court affirming the need for asylum seekers to have their claims for refugee status determined first before deportation.

4. S (On the application of Abdul Nahimana (On his own behalf and on behalf of refugees and asylum seekers in Malawi)) and Mkumbira v Minister of Homeland Security in Malawi.²¹ This decision was not determined on the merits. It was dismissed in preliminary technicalities, but the substance of the claim related to a decision of the Government compelling all asylum seekers and refugees in the country to relocate to a refugee camp at Dzaleka in Dowa district, in central Malawi.

5. The State vs Department of Poverty and Disaster Management Affairs and the Commissioner for Disaster Preparedness, Relief and Rehabilitation, Ex-Parte Frodovard Nsabimana & 83 Others.²² A decision of the High Court of Malawi that affirmed, in 2006, a decision of the Government compelling all asylum seekers and refugees in the country to relocate to a refugee camp at Dzaleka in Dowa district, in central Malawi. The decision upheld the constitutionality of the reservations entered by Malawi under the 1951 Convention Relating to the Status of Refugees in respect of various civil, political, economic and social rights, including freedom of movement.

2.2.3 strategies and action plans related to asylum, refugee protection, and migration.

1. Thus far, the only available published policy instrument seems to be the now expired Integrated Strategic Implementation Plan for the Department of Immigration July, 2007 to June 2012, published by the Ministry of Home Affairs and Internal Security (Now Ministry of Homeland Security).²³

2. Under Target 3.4, the Strategic Plan sought to have the presence of refugees outside designated camps regulated, and that by 2012, 90% of Asylum seekers/refugees in Malawi would be restricted to their designated places.

3. It is imperative that the Malawi Government develops another Strategic Plan and one that specifically addresses asylum seeker and refugee issues.

2.3. Definition of concepts

2.3.1 Definitions set out in national legislation relating certain categories of persons or concepts

Refugee

The term “Refugee” is defined under section 2 of the Refugees Act in the following terms:

refugee" means a person who—

1. owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to that country; or

2. owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

Asylum seeker

The term “Asylum seeker” is not defined under national legislation in Malawi. The general understanding under international refugee law that an asylum seeker is a person claiming refugeehood whose refugee status has not yet been determined.

Child

A child is defined under Section 23(6) of the Constitution as “a person under the age of eighteen years.”

Unaccompanied and/or separated child

In terms of section 23(1)(e) of the CCPJA, an unaccompanied or separated child is an child who (i) has no parent or guardian; or (ii) has been abandoned by the parents or guardians and after reasonable inquiries the parents or guardians cannot be found, and no other suitable person is willing and able to care for the child.

Family

Under section 2 of the Refugees Act, a family unit is defined as comprising “a spouse or spouses, unmarried children under the age of twenty-one and any other dependant relatives of the refugee.”

Victim of trafficking

Under section 2 of the Trafficking in Persons Act (TIPA) a victim of trafficking is a person or child who has suffered harm, including mental and physical injury, emotional suffering, economic loss or substantial impairment of the persons fundamental human rights through acts of trafficking.

Trafficking in persons

The term “trafficking in persons” is defined under the TIPA in the following terms:

“trafficking in persons” means recruiting, transporting, transferring,

harbouring, receiving or obtaining a person, within or beyond the territory of Malaŵi, through—

1. threats or use of force or coercion;

2. abduction;

3. fraud or deception;

4. abuse or threats of abuse of power or position;

5. abuse or threats of abuse of position of vulnerability;

6. abuse or threats of abuse of the law or legal process; or

7. giving or receiving of payments to obtain consent of a person having control of the trafficked person, for the purpose of exploitation of that person.

Stateless person

1. There is no legislation in Malawi that defines stateless persons, although some pieces of legislation, such as the Malawi Citizenship Act and the Immigration Act make reference to stateless persons. Section 18 of the Immigration Act provides for the registration of stateless persons who fulfil certain conditions or satisfy certain criteria, as Malawi citizens. Form E under the Act is a prescribed Form for the Application for Malawi Citizenship of a stateless person.

2. Under the Immigration Act, although there seems to be no provision in the content of the principal Act the addresses the issue of statelessness, the Act still has some prescribed Application forms that envisage the prospect of stateless persons making such applications. These prescribed Forms are:

   • FORM No. 14 (POL. 192), made under Regulation 23 of the Immigration Regulations, being an application Form for Permanent Residence in Malawi, and
   • FORM No. 27, made under Regulation 3(6) of the Immigration Regulations, being an application for a Visa for entry into Malawi.

3. According to Bryan A. Garner, Ed., Black’s Law Dictionary, Eighth Edition, a stateless person under international law is:

   A natural person who is not considered a national by any country. The Stateless Persons Convention (1954) provides these people with certain protections and obliges them to abide by the laws of the country where they reside."²⁴

Returnee

1. There is no provision under Malawian law the comprehensively defines the term “returnee” in the context of general asylum/refugee law. However, it is perhaps still worth to mention that under the General Amnesty Act (GAA), the term was defined.

2. The GAA was passed in 1993, during Malawi’s political transition, in order to grant general amnesty to citizens of Malawi resident in or outside Malawi, in respect of certain activities of a political nature whether or not constituting offences under the Laws of Malawi and to provide for incidental and connected matters. Under section 2 of the GAA states that:

   “returnee” means* *a citizen of Malawi coming or returning to Malawi, to permanently reside in Malawi, under amnesty granted under this Act.

3. The definition covered basically all political refugees who had fled Malawi at the time. The definition however is narrow and was not meant to provide a general definition of a returnee under asylum/refugee law.

   “Under general international law, it has been stated that”returnee" is the term used by the international community to identify a person who was a refugee, but who has recently returned to his/her country of origin. Defining a returnee is thus applicable on a person's prior refugee status."²⁵

3. Managing borders and regulating the entry of asylum seeker

3.1. Non-refoulement

3.1.1 The principle of non-refoulment under national laws and regulations

1. The principle of non-refoulement is a fundamental concept and principle which is considered as the backbone for the entire international refugee legal system. Atle Grahl-Madsen stated that when every other safeguard fails, asylum in a foreign country becomes the ultimate human right. The principle finds expression in Article 33(1) of the 1951 United Nations Convention Relating to the Status of Refugees. The article provides that:

   No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. Further, the principle is expressed in even more elaborate terms under the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa where, under Article 2(3), it is provided that:

   No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2.

3. Malawi is a party to both conventions and in 1989, it passed the Refugees Act (Cap 15:04 of the Laws of Malawi) which, according to its long title, was primarily passed “to give effect to refugee conventions as defined in the Act”. Section 10(1) of the Refugees Convention specifically provides for the principle of non-refoulement, stating that:

   1. A refugee shall not be expelled or returned to the borders of a country where his life or freedom will be threatened on account of—

   1. his race, religion, nationality or membership of a particular social group or political opinion; or

   2. external aggression, occupation, foreign domination or events seriously disturbing the public order in either part or the whole of that country.

4. The principle of non-refoulement was affirmed by the High Court of Malawi in the case of Aden Abidihaji & 67 Others vs Republic, Chombo J stated that:

   It would be against human rights principles to return the appellants to Somalia. This would be as good as sentencing them to death. Article 33 of the 1951 Convention forbids any contracting state, by the principle of non-refoulement, from returning refugees to their countries of origin or any country at all that is at war. Further Article 32 of the Universal Declaration of Human Rights stipulates that no person should be sent back to any country where his life will be endangered…Malawi is a signatory to these human rights instruments and is therefore bound to observe the principles of these instruments. A deportation order, therefore, is clearly in contravention of all these principles and must not be upheld.

3.1.2 Exceptions to the principle of non-refoulment under national laws

1. As stated earlier, one of the major purposes of the Refugees Act is to give effect to refugee conventions that include the 1951 Convention and the 1969 OAU Convention. Whilst guaranteeing the right of non-refoulement for refugees under Article 33(1) of the 1951 Convention, Article 33(2) of the Convention proceeds to make provision for exceptions to the principle. It states that:

   The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

2. Similarly, after guaranteeing non-refoulement generally in section 10(1) of the Refugees Act, drawing inspiration from article 33(2) of the 1951 Convention, Section 10(6) of the Refugees Act provides that:

   The benefit of this section shall not be claimable by a person in respect of whom there are reasonable grounds for regarding him or any aspect of the matter as a danger to the security of Malawi or who, having been convicted of a serious crime, constitutes a real danger to the community of Malawi.

3. It is evident that under the Refugees Act, the standard for exclusion when it comes to the commission of serious offences is lower than what is envisaged under the 1951 Convention. Whilst Art.33(2) states that the benefit of non-refoulement may be excluded where the refugee or asylum seeker has been convicted “of a particularly serious crime”, section 10(6) of the Refugees Act provides that the benefit of non-refoulement might be excluded merely by the fact of such person having “been convicted of a serious crime.” The terms “particularly serious crime” and “serious crime” are obviously different, and a “particularly serious crime” is more grave than merely a “serious crime.”

3.2. Border control

3.2.1 Whether national laws and/or regulations concerning border control and foreigners' entry reflect the difference between persons seeking asylum and those who may otherwise need international protection and those who want to enter the country for other reasons.

1. Entry into the borders of Malawi is governed by two statutory regimes, namely: (1) the Immigration Act (Cap 15:03 of the Laws of Malawi) and the Refugees Act.

2. Section 5 of the Immigration Act creates a requirement for all non-Malawian citizens entering the jurisdiction of Malawi to have valid travel documents recognised by the Minister responsible for immigration, and declares that any non-Malawian who does not comply with the provision is a prohibited immigrant.

3. Further, section 21(1) of the Immigration Act provides that:

   Notwithstanding anything contained in Part I and subject to the exemptions provided in subsection (2), and to the powers to exempt conferred by section 23, no person shall enter, be or remain in Malawi unless he is in possession of a current permanent residence permit, or a current temporary residence permit, a current business residence permit or a current temporary employment permit.

4. Under section 37(d) of the Immigration Act, any person who contravenes or fails to comply with any provisions of this Act for the contravention whereof or failure to comply wherewith no penalty is specially provided, shall be guilty of an offence and liable to a fine of K500 or to imprisonment for twelve months.

5. There is no specifically prescribed penalty for entering Malawi in contravention of the provisions of sections 5 and 21(1) of the Immigration Act. The conclusion therefore is that a person who fails to comply with the provisions of those sections commits an offence under section 37(d) of the Immigration Act.

6. Admittedly, some judicial decisions have held that section 5 of the Immigration Act does not create an offence and indeed that illegal entry per se is not a crime. In the case of Republic vs Paulo and others [1993] 16(2) MLR 747 (HC), Villiera J stated that:

   It would appear, therefore, that it is not an offence merely to enter or remain in Malawi without appropriate documents. Such conduct renders one a prohibited immigrant and by section 7 of the Act, an immigration officer can refuse entry to the prohibited immigrant or refuse him to remain in Malawi.

7. However, in another High Court decision of Republic vs Muhamed Abdul Ibrahim [2010] MLR 311 (HC), Chikopa JA stated affirmed the validity of the offence of illegal entry into Malawi, contrary to section 21(1)(a) as read with section 37(d) of the Immigration Act.

8. A faithful reading of the Act however suggests that when sections 5 and 21(1) of the Immigration Act are read with section 37(d) of the same, a person who fails to comply with the provisions of those sections 5 commits the offence prescribed under section 37(d) of the Act.

9. By contrast, in respect of persons seeking asylum or otherwise in need of international protection, the Refugees Act has some statutory safeguards. Section 10(4) of the Refugees Act provides that:

   A person who has illegally entered Malawi for the purpose of seeking asylum as a refugee shall present himself to a competent officer within twenty hours of his entry or within such longer period as the competent officer may consider acceptable in the circumstances and such person shall not be detained, imprisoned, declared prohibited immigrant or otherwise penalized by reason only of his illegal entry or presence in Malawi unless and until the Committee has considered and made a decision on his application for refugee status.

10. Whilst the provision seems to place a time limit within which a person who enters the country illegally but for the purpose of seeking asylum has to report to a competent officer, the Act does not state the effect of non-compliance. What it does state is that such a person should not be detailed, imprisoned, declared prohibited immigrant or otherwise penalised by reason only of his or her illegal entry or presence in Malawi unless and until the Refugee Committee has considered and made a decision on his or her application for refugee status.

11. The ultimate effect therefore is that under Malawian law, illegal entry under the general immigration scheme as provided for under the Immigration Act is different from illegal entry for the purpose of seeking asylum or international protection.

3.2.2 Measures related to access to the asylum in the context of a lockdown based on public health concerns or any similar legitimate national considerations

1. Malawi did not adopt any specific Covid 19 measures in relation to refugees or asylum seekers. However, some research findings point to some interesting observations. According to Researching Migration & Coronavirus in Southern Africa (MiCoSA).

2. MiCoSA observed that the use of Covid-19 responses to legitimise an increasingly securitised response to immigration – in other words, the pandemic has provided a convenient opening to push forward state agendas to restrict immigration while appearing to be implementing humanitarian and global health security/public health responses. MiCoSA further stated in 2021 that:

   A public health response to Covid-19 and migration has been used to further securitise the management of migration. The majority of states in SADC adopted increasingly restrictive responses to managing the movement of cross-border migrants, including refugees and asylum seekers. Exclusionary practices are experienced by migrants, refugees and asylum-seekers. Whilst exclusion, xenophobia and expulsions (at the national and city level) are not a new phenomenon in Southern Africa, the Covid-19 pandemic has exacerbated existing tensions. Some examples of the inclusion of migrants in Covid-19 responses in the SADC region do exist, including in Mozambique and Malawi.

3. At the height of the Covid-19 pandemic between 2020 and 2021, the country continued to receive asylum seekers but the number of asylum seekers entering the country per day drastically dwindled. According to the UNHCR Global Focus: Malawi 2021 Plan Summary, as at 2021, Malawi continued “to receive asylum-seekers, but at a reduced rate of less than 100 per month since the onset of the COVID-19 pandemic, notably due to restrictions on crossing international borders.”

3.3. Non-penalization

3.3.1 Whether national laws and regulations provide for non-penalization for irregular entry of asylum seekers

1. As stated earlier, section 10(4) of the Refugees Act provides for the non-penalisation for irregular or illegal entry of asylum seekers into Malawi.

2. In terms of the period during which the asylum seeker needs to report to the authorities, as stated earlier, under section 10(4) of the Refugees Act, Malawian law creates an obligation on the asylum seeker to present himself or herself to a competent officer within twenty hours of his entry or within such longer period as the competent officer may prescribed by law, the law at the same time creates significant room for flexibility. The law expects the competent officer to listen to the asylum seekers representations within any period the competent officer may consider acceptable.

3. Further, there are no conditions expressly provided for by the law for the non-penalisation of illegal entry of asylum seekers into Malawi. It is significant to note however that immigration authorities have, in practice, sought to interpret the law to entail that there are conditions for non-penalisation. In the case of Aden Abdihaji vs Republic, the Judge stated that:

   It was submitted by the Director of Public Prosecutions persons seeking asylum or refugee status are required by law that they apply for refugee status or submit to the necessary authorities to be considered as refugees or asylum seekers within 20 hours from the time of entry into Malawi. The appellants had failed to report to the appropriate officers within the stipulated time and therefore the immigration officers were justified in treating them as illegal immigrants and subject to deportation.

4. This shows that it was the understanding of the State authorities that the reporting requirement under section 10(4) of the Refugees Act was a precondition to treating the asylum seekers as persons seeking international protection under the Refugees Act, rather than general illegal immigrants under the Immigration Act. As already observed, a faithful reading of the text of the Immigration Act shows that illegal entry is actually an offence that is subject to penalisation.

4. Reception and treatment of asylum seekers

4.1. Reception facilities

4.1.1 Whether national laws and/or regulations entitle asylum-seekers to reception facilities

1. Neither the Refugees Act nor the Refugee Regulations made under the Act make provision for the establishment of asylum-seeker reception facilities. Section 10(2) of the Refugees Act makes general provision for access to Malawian territory for asylum seekers. The provisions states that: “A person claiming to be a refugee shall be permitted to enter and remain in Malawi for such period as the Committee may require to process his application for refugee status.”

2. The establishment of refugee reception facilities, and the requirement that refugees should be hosted in camps is a policy decision of the Malawi government rather than a requirement of law. This is so in view of the reservation that Malawi entered in respect of Article 26 of the 1951 Convention. The reservation states that:

   In respect of article 26, the Government of the Republic of Malawi reserves its right to designate the place or places of residence of the refugees and to restrict their movements whenever considerations of national security or public order so require.

3. Pursuant to this reservation, the Malawi Government has over the years designated places of residence for asylum seekers and refugees and in recent years has promulgated policy decisions requiring refugees to leave places of habitual residence in various areas of Malawi and to relocate to refugee camps, which serve both as refugee and asylum seeker reception centres as well as designated residential locations for refugees in the country.

4. Over the years, Malawi had two refugee camps, namely Dzaleka in Dowa District, close to 60km outside Lilongwe, the Capital City which is in central Malawi, and Luwani Refugee Camp in Mwanza District in Malawi’s central region. Luwani Refugee Camp was however closed in 2007 owing to declining numbers of refugees at the time, but recently, with an upsurge in asylum seeker and refugee numbers, and growing concerns about increasing overcrowding at Dzaleka Refugee Camp, the Malawi Government and the UNHCR plan to reopen Luwani Refugee Camp and the UNHCR has pledged U$58 million to reconstruct the refugee camp.²⁶

5. Apart from these two designated refugee camps, the Malawi Government also runs the Karonga Transit Refugee centre in northern Malawi which operates purely as an asylum seeker reception facility. Most asylum seekers in Malawi, who come from the Democratic Republic of Congo, Burundi, Rwanda and Somalia enter the jurisdiction through Karonga.²⁷

4.1.2 Whether national laws and/or regulations provide for gender and age-sensitivity in reception arrangements, addressing children's specific needs, such as unaccompanied and separated children; victims of sexual abuse and exploitation; victims of trauma and torture; as well as of other vulnerable groups

1. The national laws and/or regulations do not specifically provide for gender and age-sensitivity in reception arrangements for asylum seekers and/or refugees which, in that regard, address children’s specific needs, such as unaccompanied and separated children; victims of sexual abuse and exploitation; victims of trauma and torture; as well as of other vulnerable groups.

2. However, the general law that is applicable to all persons including asylum seekers and refugees who are physically present in Malawi do provide for such protections.

3. In terms of gender sensitivity, Section 24(1) of the Constitution provides that:

4. This provision applies to all persons in Malawi, including women asylum seekers and refugees. The right to “full and equal protection by the law” is very broad and certainly encompasses the need to protect the dignity of women (under section 19 of the Constitution) by making gender sensitive reception arrangements for women asylum seekers and/or refugees.

5. The Malawi Government is also under a statutory duty to ensure that women are protected from any forms of sexual discrimination, harassment or harmful practices. The Gender Equality Act (GEA).²⁸ Under Section 2, provides that:

6. Under this Act, some important provisions include those on the prohibition of sex discrimination,²⁹ Prohibition of harmful practices,³⁰ prohibition of Sexual harassment,³¹ provision for mandate for the adoption of Workplace policies for sexual harassment,³² and Right to sexual and reproductive health.³³

7. Under Section 3 of the Act, the term “harmful practice” is defined as:

8. In terms of children, section 23(1) of the Constitution provides that:

9. This provision makes it clear that children have the right to be protected under the law and on an equal footing regardless of the circumstances of their birth. It further entrenches the principle of the best interests of the child.

10. Generally, there are provisions under the Child Care, Protection and Justice Act (CCPJA) ³⁴ that address children’s specific needs, such as unaccompanied and separated children; and victims of sexual abuse and exploitation among others. Section 23 of the CCPJA, for instance, provides for a comprehensive framework on children in need of care and protection under the Act. It states that:

4.2. Detention and alternative(s) to detention

4.2.1 The issue of detention of asylum seekers under national laws and/or regulations, including the definition of detention under Malawian law.

1. There is no definition of the term “detention” under statute in Malawi. However, the definition of detention, which is used interchangeably with the term “imprisonment” has been well captured under Malawian common law jurisprudence. For instance, in the case of Matanda v Sales Services Ltd and others [1990] 13 MLR 219 (HC), the Court, adopting the definition in the English old “termes de la rey”, defined detention or imprisonment, at page 228, to mean:

   no other thing but the restraint of a man’s liberty whether it be in cell or in open; whether it be by a duly appointed law enforcement officer or a private person. In all these situations, the party so restrained is said to be a prisoner, so long as he has not his liberty to go freely where he wills.

2. This definition was adopted in various High Court decisions that followed thereafter, including Chiumia v Southern Bottlers Ltd [1991] 14 MLR 38 (HC), Kaisi v Registered Trustees of Blantyre Adventist Hospital [1996] MLR 97 (HC); and also by the Supreme In In the case of Fida Faiti and 9 others v Malawi Telecommunications Ltd [2006] MLR 156 (HC), Manyungwa J, after adopting the above definitions, proceeded to elaborate, at page 166, that: “the deprivation of the plaintiff’s liberty must be complete, that is to say there must be on every side of him a boundary drawn beyond which he cannot pass.” This is therefore the understanding of what detention entails under Malawian law.

3. As earlier discussed, section 10(1) of the Refugees Act does not authorise the detention of asylum seekers prior to having their refugee status determined. This position was made very clear by the High Court in the Aden Abdihaji case where Chombo J stated that:

   The appellants [asylum seekers] were charged K500 each as fines and were detained. This was clearly in contravention of the provisions of Section 10 of the Refugees Act. As already stated, the said fines have been set aside. But it is now my further conviction that based on section 10, the said fines, [having been] irregularly imposed, be returned to the appellants. As stated out in the same provision the court erred in making an order for the detention of the appellants.

4.2.2 Whether national laws and/or regulations authorize the detention of children

1. Malawian law does authorise the detention of children found in conflict with the law under certain circumstances. The Child Care, Protection and Justice Act³⁵ has elaborate provisions on how children in detention are to be treated.

2. Further, its is significant to state that section 11(2)(c) of the Constitution provides that:

3. Further, under section 211(2) of the Constitution, “Binding international agreements entered into before the commencement of this Constitution shall continue to bind the Republic unless otherwise provided by an Act of Parliament.”

4. In respect of child rights, and specifically the refugee rights of child asylum seekers or refugees, the starting point is to state that like most countries in the world, Malawi is a party to the 1989 United Nations Convention on the Rights of the child (CRC). Malawi ratified the CRC in 1991 and, therefore, in terms of section 211(2) of the Constitution, is bound by its provisions. Further, in terms of section 11(2)(c) of the Constitution, in any even, when interpreting the provisions of the Constitution, a Court is enjoined to consider applicable norms of public international law that include the CRC norms.

5. Article 37 (b) of the CRC provides that States Parties to the Convention shall ensure that:

   No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

6. In addition, in Malawi, it is always important for the authorities to recall the provisions of the of the Child Care, Protection and Justice Act on children in need of care and protection. Section 23(1)(m) of the Child Care, Protection and Justice Act provides that a child is in need of care and protection if the child is assessed by the Social Welfare Officer to be in need of care and protection. Under section 23(1)(e) of the Act, a child is also in need of protection if the child –

7. Reading these provisions together, it seems apparent that a Social Welfare Officer has very wide discretion in terms of determining that a child, who happens to be an asylum seeker or indeed a confirmed refugee, is in need of care and protection under the Act. Section 23(1)(e) makes it clear that unaccompanied children, and these therefore include unaccompanied refugee children, must be provided with statutory care and protection under the CCPJA.

8. Where a child has been determined to be in need of care and protection under the CCPJA, according to Section 24 of the CCPJA, A police officer, social welfare officer, a chief or any member of the community, may take the child and place him/her into his/her temporary custody or a place of safety.

9. Under section 25(4)(a) of the CCPJA, If a child is in a place of safety or in the care of a fit and proper person under subsection (2) thereof, then the person in charge of the place of safety or such fit and proper person is granted the power, rights and duties to have like control over, and responsibility for the maintenance of, the child as the parent or guardian of the child would have had.

10. A “place of safety” under the CCPJA means an appropriate place where a child in need of care and protection can be kept temporarily and includes a safety home or a foster home.³⁶

11. Part III of the Act deals comprehensively with issues of children suspected to have committed offences, and the law is of general application. It applies to all children and does not exclude asylum seeking of refugee children.

12. Division 2 of Part III of the Act deals with methods of bringing a child offender before a court or other inquiry. The short of it is that the law authorises the detention of children in conflict with the law and this does not exempt asylum seeking or refugee children in conflict with the law.

13. In dealing with matters of children however, courts and law enforcement agencies have to bear in mind the provisions under the CRC and the ACRWC that in jurisdictions where the detention of children is allowed, such detention or imprisonment must be used only as a measure of last resort and for the shortest appropriate period of time...the child shall continue to be in the care of the person referred to in paragraph (a) notwithstanding that the child is claimed by the parent or guardian or any other person.

4.2.3 Laws and regulations governing the detention conditions of asylum-seekers

1. Unless accused of the commission of criminal offences, asylum seekers are not detained or accommodated together with persons accused of or convicted of criminal offences. As discussed earlier, in terms of section 10(4) of the Refugees Act, even for asylum seekers who entered Malawi using un chartered routes (illegal entry according to the provision), the same section proceeds to state that “such person shall not be detained, imprisoned, declared prohibited immigrant or otherwise penalized by reason only of his illegal entry or presence in Malawi unless and until the Committee has considered and made a decision on his application for refugee status.”

2. Some immigration authorities and junior courts have previously held the view where an asylum seekers fails to present himself or herself to a competent officer within twenty hours of his entry, then he or she should be treated as a prohibited immigrant and liable to be deported from Malawi. However, in the Aden Abdihaji case, the High Court made it clear that this is not the position and that at any moment that an asylum seeker makes an asylum claim, including before a court of law, he or she should receive the protections prescribed under section 10(4) of the Refugees Act.

3. However, where the asylum seekers and refugees are accused of committing immigration offences, whether wrongfully or not, they are subjected to detention and the same prison conditions to which every detained person accused of committing a criminal offence is subjected.

4. Under Sections 14(1) of the Immigration Act, any person who is suspected of being a prohibited immigrant may be detained by an immigration officer for such reasonable period, not exceeding fourteen days, as may be required for the purpose of making enquiries as to such person’s identity or antecedents. Further, in terms of subsection (2), such person “may during such period be detained in the nearest convenient prison or gaol unless he or such sureties as may be approved by the Chief Immigration Officer,” in which event the Chief Immigration Officer may release such person on bail.

5. Section 14(2) proceeds to say that where the suspected prohibited immigrant is so released on bail, the Chief Immigration Officer may impose conditions of the recognizance of such person and such conditions “shall be that such person shall appear within such period and before such person as may be prescribed in the recognizance and shall report himself to an immigration officer at such times as may be fixed in the recognizance.”

6. Under Section 15(1) of the Immigration Act, “any prohibited immigrant who has been ordered to leave Malawi may be detained in the nearest convenient prison or such other place of custody as may be authorized by the Minister as a place of custody for the purposes of this section pending the completion of arrangements for his removal from Malawi.”

7. The import of sections 14(1) and 15(1) of the Immigration Act is that where an immigration officer suspects that a person claiming to be an asylum seeker might be a prohibited immigrant, then such person will be treated according to the Immigration Act and detained in a normal prison with other detainees accused of having committed other general crimes.

8. In addition, where an immigration officer orders a person deemed to be a prohibited immigrant, upon making the enquiries envisaged under section 14(1) of the Act, then again such person, whether or not he or she is an asylum seeker, might be detained together with and under similar conditions as other detainees accused of having committed general crimes in society.

4.3. Assistance

4.3.1 What type of assistance is provided? Whether food, clothing, accommodation and medical care, social counseling, and legal aid provided, and whether the assistance is free

1. seekers receive broad social assistance that includes food, clothing, accommodation and medical care, social counseling.

2. Legal Aid is available to asylum seekers and refugees through the Malawi Legal Aid Bureau (LAB) in terms of the Legal Aid Act on the same terms as it is available to citizens.

3. Generally however, legal aid provision by the LAB, in respect of the whole Malawian population, leans very heavily on assistance in criminal matters and much less in civil matters. The result therefore is that on non-criminal matters, in practice, legal aid may not be easily available to citizens, let alone asylum seekers and refugees.

4. Further, it is noteworthy that even in criminal matters, provision of legal aid in Malawi is only mandatory in cases where accused persons are accused of serious homicide offences.³⁷ For the rest of court proceedings, whether criminal or civil, the LAB exercises discretion, within its limited resources, on whether to provide legal aid or not.³⁸

5. There have also been special cases where the UNHCR and the Malawi Human Rights Commission (MHRC) have intervened in cases involving asylum seekers and essentially provided legal aid. For instance, in the Aden Abdihaji case, the UNHCR sponsored a private practice lawyer to represent the asylum seekers, and the MHRC, which joined the proceedings as amicus curiae, made clear representations in favour of the asylum seekers thereby indirectly providing legal aid. In such a case, the assistance was free of charge, requiring no contribution from the concerned asylum seekers.

4.4. Asylum seekers rights

4.4.1 Whether national laws and regulations provide for respect for the family unity

1. The Constitution, in section 22(1), provides that “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” Thus, in providing for the protection of the family as a fundamental group unit of society, the Constitution, as the supreme law of Malawi, provides for respect for family unity including the families of asylum seekers and refugees.

2. The Refugees Act also provides in Form I under the Refugees Regulations, that when making an application for refugee status, the asylum seeker should indicate the names of all family members living or to be living with him or her. The provision is thus clearly made in the spirit of according respect for family unity.

4.4.2 Whether national laws and regulations provide for rights regarding asylum-seekers in the field of health care, work, education, and freedom of movement.

1. Neither the Refugees Act nor the Refugees Regulations make provision for substantive rights of refugees. Neither civil and political rights such as freedom of expression, assembly, and movement among others, nor socioeconomic rights such as health care, work and education are provided for.

2. By contrast, when Malawi ratified the 1951 Convention it entered a number of reservations.

3. In respect of articles 7, 13, 15, 19, 22, and 24, the Government of the Republic of Malawi (Government of Malawi ) reservation is that it “considers these provisions as recommendations only and not legally binding obligations.”³⁹

4. In respect of article 17, its reservation is that Malawi does not consider itself bound to grant a refugee who fulfils any of the conditions set forth in subparagraphs (a) to (c) to paragraph (2) of article 17 on automatic exemption for the obligation to obtain a work permit.⁴⁰ Further, in respect of article 17 as a whole, the Government of Malawi does not undertake to grant to refugees rights of wage earning employment on more favourable terms than those granted to aliens (foreign nationals) generally.⁴¹

5. As regards article 26 of the 1951 Convention, the Government of Malawi stated that it “reserves its right to designate the place or places of residence of the refugees and to restrict their movements whenever considerations of national security or public order so require.”⁴²

6. Finally, in respect of article 34 of the Convention, the Government of Malawi stated that it “is not bound to grant to refugees any more favourable naturalization facilities than are granted, in accordance with the relevant laws and regulations, to aliens generally.”⁴³

7. One therefore observes that Malawi’s reservations under the 1951 Convention are fairly sweeping. A number of significant socioeconomic rights are considered mere recommendations and not legal obligations. The position is similar in respect of some civil and political rights. Thus, for instance, the country entered a reservation in respect of article 26 of the Convention reserving Government’s discretion to limit the free movement of asylum seekers.

4.4.4 Whether national laws and regulations provide for right to access to UNHCR

1. The Refugees Act obliges immigration and other competent authorities to inform asylum seekers and refugees about access to the UNHCR. According to Regulation 8 of the Refugees Regulations:

   1. The immigration officer or other competent officer shall, at a place and time a person crosses the border into Malawi for the purpose of seeking refugee status, inform that person of the right to approach the Representative of the United Nations High Commissioner for Refugees in Malawi for assistance.

   2. Subject to subregulation (3), the Committee shall inform the Representative of the United Nations High Commissioner for Refugees in Malawi of the persons who have entered Malawi and have submitted applications for refugee status and the Committee shall do so within thirty days of the date of receipt of each application.

   3. In case of persons who have entered Malawi as refugees in accordance with a group determination procedure, the Committee and the Representative of the United Nations High Commissioner for Refugees shall jointly ascertain the numbers and particulars of such persons in accordance with a procedure therefor to be determined by the Committee.

4.5. Child best interest

1. The principle of the best interests of the child is enshrined under section 23(1) of the Constitution, and it applies to all children without discrimination. The section provides that:

4.5.1 Are there procedures to determine children's best interests, if so describe same.

1. The general procedures for determining the children’s bests interests are provided for under the Child Care, Protection and Justice Act (CCPJA).⁴⁴ The Act provides for such broad issues as child care and protection by the family, children in need of care and protection, guardianship, fosterage, support for children by Local Authorities, protection of children from undesirable practices, methods of bringing a child offender before a court or other inquiry, detention before a finding against a child, preliminary inquiry, diversion, access by a child to legal representation, and public reformatory centres and public safety homes, among others.

4.5.2 Whether procedures exist to prevent children's separation from their families and facilitate family tracing and reunification for those who have become separated, and if so, a description of such procedures.

1. There are no explicit provisions either under refugee law or under general domestic child protection law that directly point to prevention of children’s separation from their families. However, there are explicit provisions on family tracing. Section 74 of the CCPJA provides that:

2. However, the provisions of the Convention on the Rights of the Child, 1989, are directly applicable in Malawi. Various court decisions in Malawi have affirmed the direct applicability of the provisions of the Convention on the Rights of the Child in Malawi. In the case of Re Adoption of DB,⁴⁵ Nyirenda J (as he then was) stated that:

   The position however is that Malawi ratified the Convention on the Rights of the Child (CRC) in 1991. We are also a party to the African Charter on the Rights and Welfare of the Child (ACHPR). These Conventions are binding on Malawi by choice. In other words, Malawi has consciously and decidedly undertaken the obligations dictated by these Conventions. It is therefore our solemn duty to comply with the provisions of the Conventions.

3. In the case of Moyo v Attorney - General,⁴⁶ a panel of three Judges, Potani, Mtambo and Kalembera, JJ, held that: “Malawi having acceded to the CRC on 2^nd January, 1991 the said Convention is binding on Malawi and all public or private institutions in this country.”

4. Articles 9 and 10 of the CRC provide that:

   Article 9

   1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

   Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

   2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

   3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

   4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

   Article 10

   1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the

   applicants and for the members of their family.

   2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

5. The relevant authorities in Malawi are therefore bound to apply, respect, protect and promote these rights of the child, including the asylum seeker or refugee child.

4.5.3 Is birth registration and documentation provided for all children?

1. There does not seem to be a requirement under Malawian law for the birth registration and documentation for all children in the country.

2. Under section 9(2) of the National Registration Act (Cap 24:01 of the Laws of Malawi), in terms of the registration of foreign nationals, it is provided that the Act applies to a person:

   who, not being a citizen of Malaŵi, has been granted permanent residence permit, temporary employment permit or business residence permit under the Immigration Act to reside in Malaŵi, shall qualify to be registered under this Act and shall apply to

   the district registrar in the area in which he ordinarily resides, for registration within one month of his acquiring the relevant qualification as set out in this section.

3. This means, therefore that child asylum seekers, as a matter of law, are excluded from the application of the National Registration Act, and hence there is no legal requirement for the registration of their births or the provision of birth documentation. This is obviously a regrettable situation under Malawian law.

4. However, in practice, arrangements have been made to ensure that refugee children born at Dzaleka Refugee Camp are registered and given birth certificates. The UN in Malawi reported in 2021 that:

   UNHCR supported Government in line with the migration policy to ensure that all refugee and asylum seeker children born in Malawi have birth certificates.⁴⁷

5. Refugee Determination Procedures

5.1. Procedural guarantees

5.1.1 Whether national laws and regulations designate an expert authority responsible for examining refugee status applications and making a decision in the first instance, and if so, what its administrative status is (administrative or quasi-judicial)

1. There is no expert authority tasked with the responsibility of examining refugee status applications. The authority that is responsible for refugee status determination (RSD) is the Refugee committee (referred to earlier) and its composition focuses on including various office holders whose institutions are deemed to have a major stake in matters of the treatment of refugees rather than based on their expertise in refugee matters.

2. The Refugee Committee, in its adjudicative role, is a quasi-judicial body.

5.1.2 Whether national law and regulations provide that asylum-seeker should receive information and guidance as to the procedure to be followed in a language and manner he or she understands

Regulation 8 of the Refugees Regulations, 1990, made under section 13 of the Refugees Act provides for assistance to applicants for refugee status in Malawi. The Regulation states that:

1. The immigration officer or other competent officer shall, at a place and time a person crosses the border into Malawi for the purpose of seeking refugee status, inform that person of the right to approach the Representative of the United Nations High Commissioner for Refugees in Malawi for assistance.

2. Subject to subregulation (3), the Committee shall inform the Representative of the United Nations High Commissioner for Refugees in Malawi of the persons who have entered Malawi and have submitted applications for refugee status and the Committee shall do so within thirty days of the date of receipt of each application.

3. In case of persons who have entered Malawi as refugees in accordance with a group determination procedure, the Committee and the Representative of the United Nations High Commissioner for Refugees shall jointly ascertain the numbers and particulars of such persons in accordance with a procedure therefor to be determined by the Committee.

5.1.3 Whether national laws and regulations provide asylum-seekers with assistance, including competent interpreter's services, access to free legal advice and representation, for submitting their claim to the relevant authorities

1. In respect of the provision of assistance in the form of competent interpretation services, the SOP, under paragraph 34, state, in part, that:

   Each case shall be heard by one Eligibility Officer. At the beginning of the interview, the Eligibility Officer must do the following:

   • Introduce him/herself to the Applicant and his/her family;
   • Explain in clear and simple terms the purpose of the interview and the definition of a refugee;
   • Explain the presence of the interpreter and his/her role, and that the interpreter has a duty of confidentiality to the Applicant;
   • Inform the Applicant of his/her rights and obligations to wit; his/her obligation to tell the truth, the right to confidentiality; the right to request for another interpreter or interviewer."* [emphasis added]

   1. In so far as legal advice and legal representation are concerned, the Refugees Act does not have a specific provision on this right. However, the Legal Aid Act (Cap 4:01 of the Laws of Malawi), is a piece of legislation that generally makes provision for the granting of legal aid in civil and criminal matters to persons whose means are insufficient to enable them to engage private legal practitioners and to other categories of persons where the interests of justice so require. The Legal Aid Act makes no distinction between nationals and non-nationals.⁴⁸ It applies to all persons who are subject to the jurisdiction of Malawi.

   2. Section 2 of the Legal Aid Act defines legal aid to mean the provision of legal representation, legal advice or legal assistance. Section 16 of the Act expands on this definition by providing that:

   Legal aid shall consist of—

   1. legal advice;

   2. legal assistance;

   3. representation in any court, tribunal or similar body or authority; and

   4. the provision of civic education and information about the law.

2. It is therefore evident, when one examines the provisions of section 16(a), (b) and (c) of the Legal Aid Act, that the scope of legal aid as envisaged under the Legal Aid Act is wide enough to include the provision of free legal advice and representation for submitting refugee status application claims to the relevant authorities in Malawi.

5.1.4 Whether national laws and regulations provide that asylum-seekers be given access to their personal interview report and that their approval should be sought on the contents of such report to avoid misunderstandings and clarify possible contradictions?

1. The SOP, under Paragraph 156, provide that:

   An Applicant shall have access to his/her entire RSD file if s/he so requests. The request shall be in writing addressed to the Administrative and Operations Manager. If approved the Applicant shall be given an appointed time to come and review the file, redacted as appropriate to ensure the confidentiality of RSD Unit staff or other individuals. S/he shall neither be allowed to carry the file out of the RSD office nor to take out any sections of the file. S/he is allowed to take copies of any documents at his/her own cost. The same procedure applies when a person identifies him/herself as the Legal Representative of the Applicant

2. This right of access to the RSD file therefore facilitates access by the asylum seeker to his or her personal interview report and other relevant information relating to the RSD process.

5.2. Confidentiality

5.2.1 Whether national laws and regulations provide for the confidentiality of personal information

1. Malawi does not have framework legislation or data protection or protection of personal information. However, in so far as such data or personal information might be in electronic form, then there is protection of the same guaranteed under the Electronic Transactions and Cyber Security Act (ETCSA), 2016.

2. Part VII of the ETCSA provides for Data Protection and Privacy. The relevant provisions of Section 71(2) of the Act are in the following terms:

3. Further, Section 72(2) of the ETCSA provides that:

4. In addition, section 74 (1) & (2) of the Act states that:

5. It is clear from these provisions that since the ETCSA is an Act of general application, it equally applies to asylum seekers and refugees who are subject to the jurisdiction of Malawi.

6. With specific reference to refugees who have been granted status, Section 9 of the Refugees Act makes provision that “Any person granted refugee status under this Act shall be subject to the laws of Malawi” This buttresses the fact that the provisions of the ETCSA apply both to Malawian nationals and non-nationals including asylum seekers and refugees.

7. The foregoing provisions amply demonstrate that in so far as personal data is in electronic form, the data subject, in the present context an asylum seeker or a refugee in Malawi, has rights under section 71(2) of the Act for his or her information to be protected by the controller or holder of the information, and indeed under section 72(2), to object to the processing of his or her information in any form where there are justifiable grounds for such objection.

8. Furthermore, section 74 of the ETCSA then imposes clear obligations on the Controller of such information to implement technical and organizational measures necessary for the protection of personal data or information held in electronic form.

9. The ETCSA is very important considering that in today’s world, most personal information or data is held in electronic form.

5.2.2 Whether national laws and regulations provide that disclosure of personal information should be subject to the informed consent of the refugee or asylum-seeker and respect other data protection principles

1. Section 71(2)(a) of the ETCSA provides explicitly that "Personal data may be processed only if the data subject has unambiguously given his consent."

2. Under section 2 of the ETCSA, the term “processing of data” has been defined very broadly to mean:

3. It is apparent from this definition that “processing of data” under the Act includes disclosure of such information.

4. Further, as shown in the provisions of sections 71, 72 and 74 of the ETCSA above, legislation is provided proper principles to ensure that person data held in electronic form is protected.

5. As stated earlier, the ETCSA is an Act of general application and therefore applies to asylum seekers and refugees in Malawi.

5.2.3 Whether national laws and regulations provide that all staff, including border guards, security staff, reception center staff, counsellors, interpreters, legal advisers, and medical practitioners who work with asylum-seekers and refugees, have a duty of confidentiality for information received from or about asylum-seekers and refugees

1. The Access to Information Act, 2016 (AIA) provides a general framework for the right of access to information in Malawi, giving effect to section 37 of the Constitution of the Republic of Malawi (the Constitution) which guarantees the right. Essentially, it is not a data protection piece of legislation. However, it still has provisions that are very relevant for purposes confidentiality of information and protection of data. Section 20 of the AIA provides that:

2. As shown above, with regard to information which is in electronic form, the ETCSA creates a duty protection framework for data controllers. Section 2 of the Act defines a data controller as:

3. This definition is wide enough to cover all staff, including border guards, security staff, reception center staff, counsellors, interpreters, legal advisers, and medical practitioners who work with asylum-seekers and refugees, in so far as they process electronic data relating to the asylum seeker or refugee.

5.3. Registration

5.3.1 Are all members of an asylum-seeking household registered?

1. The starting point is to define who a “family member” is under the Refugees Act. According to Section 2 of the Act, a family member means any spouse or spouses, unmarried children under the age of twenty-one and any other dependant relatives of the refugee.

2. Members of the asylum-seeking household are registered during the refugee status determination (RSD) process. A contextual reading of the Refugees Act and the regulations and forms prescribed thereunder also suggest that the law provides for such registration.

3. Section 13 of the Refugees Act provides that:

4. Part 11 of Form I, Application For Refugee Status in Malawi, made under the Refugee Regulations, promulgated in terms of regulations 2 (1); 5 (1); and 7 (1) and (2) requires the applicant to provide full particulars of family members living with applicant.

5. It logically follows that the Refugees Act makes provision for the registration of members of an asylum-seeking household.

5.3.2 Whether national laws and regulations contain any direct or indirect obstacles that prevent individuals in detention, including immigration detention, from submitting an asylum claim

1. There is no law that prevents individuals in detention, including immigration detention, from submitting asylum claims. Under Section 42(1) of the Constitution, it is provided that:

2. Thus normatively, the Constitution requires that all detained persons be held under conditions which are consistent with human dignity and this should certainly include detained persons who wish to make a claim for refugee status before the Refugee Committee.

3. The obstacles that detained applicants may face are therefore not legal, but they may face practical challenges. For instance, as detained persons, they generally rely on prison staff to facilitate their communication with the outside world. It is possible that prison staff might, for various reasons, decide to compromise the detained person’s communications and thus provide an obstacle to submit an asylum claim.

5.3.3 Whether national laws and regulations provide that claims submitted at the border, including airports, be assessed based on a particular border procedure? If so, what is the process

1. No specific procedure prescribed for the assessment of claims submitted at the border. All applications for asylum are dealt with uniformly by the Refugee Committee, depending on whether the determination in issue is individual refugee status determination or group refugee status determination.

2. The procedure that the Refugee Committee follows in the process of refugee status determination (RSD) is provided for under Regulation 3 of the Refugee Regulations. The regulation provides that:

   1. On receipt of an application for refugee status, the Committee shall, within thirty days of the date on which the application is received by the Committee, consider the application and make such inquiry or investigation respecting the applicant as the Committee considers necessary and thereafter grant refugee status or deny the grant of refugee status to the applicant and, without undue delay, notify the applicant of its decision in writing.

   2. The Committee shall not make a decision denying the grant of refugee status to any applicant without first giving to the applicant an opportunity of being heard and of presenting evidence.

5.3.4 Whether border officials register asylum claims, or are they required to refer persons seeking asylum to the designated authority

1. Under Malawian law, border officials do not register asylum claims. The law, under section 6(1) of the Refugees Act, vests the power to “receive and hear applications for refugee status” in the Refugee Committee.

2. Further, Regulation 8(1) of the Refugee Regulations provides that:

   The immigration officer or other competent officer shall, at a place and time a person crosses the border into Malawi for the purpose of seeking refugee status, inform that person of the right to approach the Representative of the United Nations High Commissioner for Refugees in Malawi for assistance.

3. Part of the assistance that the UNHCR provides under this regulation is to help the asylum seeker make a proper application for refugee status before the Refugee Committee.

4. Further, the relevant part of Regulation 8(2) of the Refugee Regulations provides that:

   …the Committee shall inform the Representative of the United Nations High Commissioner for Refugees in Malawi of the persons who have entered Malawi and have submitted applications for refugee status and the Committee shall do so within thirty days of the date of receipt of each application.

5. Simply stated, applications for refugee status are submitted to the Secretariat of the Refugees Committee.

5.3.5 Whether asylum-seekers and all family members accompanying them are registered and issued with appropriate individual documentation, which reflects their status as asylum-seeker(s) and remains valid until the final decision of their asylum application(s)

1. Research finding show that the Malawi Government:

   has a transit facility at Karonga in the northern part of Malawi bordering with Tanzania, where basic biodata of new arrivals is collected. The information is transmitted to the camp for subsequent status determination and electronic registration in the ProGres system managed by UNHCR. Once properly registered all families are issued with family ration cards, as well as refugee (when they have been granted refugee status) and asylum seeker ID cards if the RSD decision is pending. Under the continuous registration process, ProGres is regularly updated by recording births, deaths, family reunifications, voluntary return and spontaneous departures, where information is available.⁴⁹

2. These findings show that asylum seekers and all family members accompanying them are indeed registered and issued with appropriate individual documentation reflecvting their status as asylum seekers and that the documentation remains valid until the final RSD decision is made.

5.3.6 Whether asylum claims be submitted at the border? If so, do national laws and regulations provide that asylum seekers who apply at the border are admitted into the State's territory and given a temporary right to remain there until a final determination on the asylum application

1. SOP, paragraph 13

   Upon completion of the Government of Malawi registration formalities as set out in the Registration SOPs, whether at Karonga Transit Centre or, for spontaneous arrivals at Dzaleka, and filling out of the Application for Refugee Status, the Registration Clerk at Dzaleka shall cause to be forwarded to the RSD Unit (the Administrative and Operations Manager) the Application for Refugee Status Form plus copies of any identification and documentation that the Applicant may possess.

2. Further, under paragraph 31 of the SOP, it is provided that:

   Asylum seekers shall be interviewed in their designated camp. This includes urban based cases who shall be required to report to a camp in order to be interviewed. Applicants may exceptionally request that they be interviewed at the RSD Office in Lilongwe.

3. These provisions thus clearly show that whilst initial registration of refugees may take place at Karonga Transit Centre (where most asylum seeker arrivals come through), the actual application and interview for refugee status takes place at Dzaleka refugee camp, and that even urban based asylum seekers are required to travel to Dzaleka camp for the purpose, save in exceptional circumstances.

5.3.7 Whether asylum claims be lodged irrespective of whether or not concerned individuals possess personal identity or travel documents

1. Asylum claims can be lodged irrespective of whether the individual possesses travel or identity documents. Section 10(4) of the Refugees Act provides that:

2. The import of this provision is that it entitles any person to apply for refugee status who, although having entered the jurisdiction illegally, claims to be a refugee. The circumstances of illegal entry have not been circumscribed. Clearly, entry through unchartered routes without any form of documentation would ordinarily constitute illegal entry. Section 10(4) provides that such persons may still apply for refugee status. If at all there was any doubt about this interpretation, then the Court in the Aden Abdihaji case made the position clear. Chombo, J stated that:

   The State contends that the appellants did not have travel documents and therefore [the Court should] declare them as illegal immigrants. The situation that the appellants are running away from is one of war. As such, it would be overtaxing any person coming from such a situation to expect them to have or carry proper travel documents. At the particular point of departure for any person, the main pre-occupation is to escape to safety and not make for proper transiting arrangements.

5.3.8 Whether female asylum-seekers are accompanied by adult male relatives, and whether they are informed in private and in a language they understand that they may have a valid claim in their own right and that they have a right to make an independent asylum application at any stage.

1. There is no law under Malawian law that restricts the right of female asylum seekers to be accompanied by adult male relatives when making applications for refugee status, or one that provides that they may not have a valid claim in their own right.

2. As earlier discussed, section 24(1) of the Constitution of Malawi provides that all women in the country "have the right to full and equal protection by law and have the right not to be discriminated against on the basis of their gender or marital status." Thus, any attempts to place such restrictions on female asylum seekers would be unconstitutional.

5.4. Admissibility procedures

5.4.1 Do national laws and regulations contain automatic barriers to the examination of the substance of asylum applications? If so, what are they?

1. Malawian law provides for some automatic barriers to the examination of the substance of asylum applications. Applications for refugee status are made in terms of section 10 of the Refugees Act. Section 10(2) of the Act provides that:

   A person claiming to be a refugee shall be permitted to enter and remain in Malawi for such period as the Committee may require to process his application for refugee status.

2. However, Section 10(6) of the Refugees Act provides that:

3. The effect of Section 10(6) of the Refugees Act is therefore to exclude the persons described in the section from claiming refugee status in Malawi, thus placing an automatic barrier to a consideration of the substance of their asylum applications.

4. Another provision that may also be considered to constitute an automatic barrier to consideration of the substance of one’s application for refugeehood is section 8 of the Refugees Act. The provision states that:

5. Thus, once the Committee has serious reasons to believe or consider that a person is guilty of any such conduct as is listed under sections 8(a) – 8(d), then the Committee may not proceed to consider the substance of such an application.

5.4.2 Whether there is a time limit imposed for the submission of an asylum claim to the authorities.

1. The law does not prescribe a time limit for the submission of an asylum claim to the authorities.

2. However, section 10(4) of the Refugees Act provides that:

3. In so far as section 10(4) imposes a time limit from the moment of entry into Malawi, within which a person who illegally enters the country for purposes of asylum is to present himself or herself to a competent authority, the provision may be understood as placing some kind of time limit for the submission of an asylum claim to the authorities. It can be logically surmised that the person seeking to claim asylum presents himself/herself to the competent officer for purposes of submitting, or being assisted to submit, an asylum claim.

5.4.3 Whether national laws and regulations provide for the application of the first country of asylum concept. If so, does it provide for an individual assessment as to whether the protection in such ‘first country of asylum’ is both still genuinely available and effective?

Malawian law does not have any provision for the application of the first country of asylum concept.

5.4.4 Whether national laws and regulations provide for the possibility of declaring an application inadmissible on the basis that a third country is responsible, i.e., a country of transit or previous stay (safe third country concept)

Consistent with the earlier response, Malawian law accordingly does not provide for the possibility of declaring an application inadmissible on the basis that a third country is responsible.

5.4.5 If so, whether national laws and regulations provide for an individual assessment of whether the asylum-seeker can safely be sent to such third country, and is the applicant given sufficient opportunity to rebut the presumption of safety.

Not applicable in view of earlier responses above.

5.4.6 Whether national laws and regulations define "safe third country"? If so, what is the definition?

Malawi does not have provisions for “safe third country.”

5.5. Adjudicating claims

5.5.1. Whether national laws and regulations provide that the credibility assessment must be conducted on an individual basis considering the asylum seeker's personal and contextual circumstances.

The Malawi Government, through the Commissioner for Refugees, and with the assistance of the UNHCR, developed the “RSD Procedural Standards: Guidance Note to the RSD Assessment Form.” The Guidance note, under Part II, generally address the subject of credibility assessments, and these are made on an individual basis and indeed taking into account the asylum seeker’s personal and contextual circumstances.

5.5.2 Whether national laws and regulations provide that the credibility of the asylum seeker's statements relating to each material element must be assessed with reference to credibility indicators, and if so, which indicator(s)?

1. The Guidance Note, in Part II at paragraph 1, guides the assessor as follows:

   [Y]ou are required to evaluate the credibility of the Applicant’s account, as summarized in the previous section, and to state which elements of the claim as presented by the Applicant you consider established. The credibility assessment is an essential part of establishing the material facts of a case, that is, those factual elements which determine whether a person is eligible for international refugee protection.

2. At paragraphs 3 and 4 of the Guidance Note, it is provided that:

in order to decide whether you believe the claim of the Applicant, you must assess the credibility of the statements of the Applicant in light of any other relevant information, including oral or written statements by other persons and any documentary evidence. While corroborative evidence can reinforce the reliability of the statements made, a negative credibility finding should not normally be based solely on the Applicant’s failure to produce documentary evidence (see also below at [II]31–32). It will hardly be possible for an Applicant to “prove” every aspect of his or her case and your findings on credibility must take account of the principle of the benefit of the doubt and be made in consideration of:

• The Applicant’s genuine effort to substantiate his or her story
• The coherence and plausibility of the statements and documentary evidence regarding the material aspects of the claim
• The consistency of this evidence with generally known facts on the situation in the country of origin

Your assessment should set out your credibility findings, both positive and negative, on material points as well as your evaluation of the significance of these findings for the overall credibility of the claim. The analysis in the Credibility Assessment should focus on what happened in the past and on the Applicant’s current circumstances and profile.

5.5.3 Standard of proof set in legislation or in practice for the assessment of credibility

The law does not specifically prescribe the standard of proof in refugee status determination procedures. However, in practice, the Committee uses the civil standard, namely, a balance of probabilities. This is confirmed by the Guidance Note which states that:

The standard of proof with regard to credibility – that is, the threshold which must be met by the Applicant in persuading the adjudicator as to the truth of his or her factual assertions – is that of “balance of probability”. In other words, credibility is established where the Applicant has provided a claim that is coherent and plausible, not contradicting generally known facts and therefore, on balance, capable of being believed.⁵⁰

5.5.4 Whether national laws and regulations have provisions on the decision-making process.

1. The Refugees Act and the Refugees Regulations have some provisions relating to the decision-making process under RSD.

2. Firstly, section 6 of the Refugees Act, which provides for the functions of the Committee, states that:

3. Section 7 of the Act then proceeds to deal with the question of evidence and procedure before the Refugees Committee. As earlier stated above, regrettably, this section falls short of defining explicitly matters of burden and standard of proof. The provision states as follows:

4. Furthermore, Regulation 3 of the Refugees Regulations deals with what it terms the “processing of applications.” It provides that:

   1. On receipt of an application for refugee status, the Committee shall, within thirty days of the date on which the application is received by the Committee, consider the application and make such inquiry or investigation respecting the applicant as the Committee considers necessary and thereafter grant refugee status or deny the grant of refugee status to the applicant and, without undue delay, notify the applicant of its decision in writing.

   2. The Committee shall not make a decision denying the grant of refugee status to any applicant without first giving to the applicant an opportunity of being heard and of presenting evidence.

   3. Where the Committee has decided to deny a grant of refugee status it shall forthwith inform the applicant of the right of appeal to the Minister against the decision of the Committee.

5. In addition, Regulation 4 of the Refugees Regulations deals with matters of cancellation or revocation of the Committee’s decision granting refugee status. It states that:

   1. The Committee shall not cancel or revoke its decision granting refugee status to any person without first giving that person an opportunity of being heard and of presenting evidence.

   2. Where the Committee has decided to cancel or revoke its decision granting refugee status to any person, it shall forthwith inform that person of the right of appeal to the Minister against the decision of the Committee.

6. Lastly, in terms of appeals, Regulation 5 lays out the procedures for appeal to the Minister. It is in the following terms:

   1. An appeal to the Minister against a decision of the Committee shall be brought by giving notice of appeal in Form II set out in the Schedule.

   2. On receipt of the notice of appeal against a decision of the Committee, the Minister shall—

   1. consider and determine the appeal; or

   2. require the attendance of the person making the appeal before the Minister or order such person to provide to the Minister in writing such further information as the Minister may require and thereafter determine the appeal.

5.5.5 Whether, where a family seeks asylum, the applications of family members and other dependants are assessed on their own merits irrespective of whether the principal applicant is recognized as a refugee or not.

1. According to paragraph 9 of the SOP:

   Principal Applicants and all accompanying adult family members/ dependants must complete all parts of the RSD Application Form. The requirement that all accompanying adult family members/dependants complete the RSD Application Form is intended to give all adult Applicants the opportunity to inform the GoM of any individual protection needs they may have. The information on the RSD Application Form permits the GoM to more systematically identify, at an early stage in the process, accompanying family members/dependants who may have independent grounds for seeking refugee protection, and whose eligibility for refugee status should be examined as Principal Applicants in the RSD procedures.

2. This therefore entails that adult family members and dependants are assessed on their own merits irrespective of the status or fate of the application of the principal applicant.

5.6. Interview and decision making at first instance

5.6.1 Whether national laws and regulations provide that an interview must be conducted with asylum-seekers to assess their claim

According to paragraph 8 of the SOP:

Persons who have been duly registered and applied for refugee status with the Government of Malawi in the prescribed form shall be interviewed and have the status of their applications determined.

5.6.2 Whether national laws and regulations provide for each adult asylum-seeker to be given a personal interview before a decision is made by the authority responsible for adjudicating asylum claims at first instance.

1. The SOP, at paragraph 31, provide that:

   Asylum seekers shall be interviewed in their designated camp. This includes urban based cases who shall be required to report to a camp in order to be interviewed. Applicants may exceptionally request that they be interviewed at the RSD Office in Lilongwe.

2. This clearly means that each adult asylum seeker is accorded a personal interview before an RSD decision is made.

5.6.3 Whether the central asylum authority provide reliable, accurate, and up-to-date country of origin information to enable decision-makers to appropriately assess the claim

1. The central authority for refugee status determination is the Refugee Status Determination Unit under the Ministry responsible for Home Affairs or other responsible ministry if so designated. It comprises Eligibility Officers and such other officers deemed necessary for its purposes. They are supervised by other senior officers but ultimately report to the Commissioner for Refugees, through the Office of the National Coordinator for Refugees.⁵¹

2. The SOP state that “[t]he Eligibility Officers shall be persons trained in refugee law and shall be responsible for interviewing applicants, preparing assessments and recommendations, as well as submitting the same” and that “[t]he Eligibility Officers shall continue to receive periodic training in order to remain up-to-date in respect of RSD law and procedure, and country of origin information.”

3. The author however could not independently verify that in practice, the central asylum authority provides reliable, accurate, and up-to-date country of origin information to enable decision-makers to appropriately assess the refugeehood claims.

5.7. Accelerated procedures

5.7.1 Whether national laws and regulations provide for accelerated procedures. If yes, for what sort of claim?

1. The SOP provide for expedited procedures under certain circumstances. Under paragraph 15 of the SOP, it is provided that:

   the AOM should review the applications for any cases that may be deemed highly vulnerable and thus require further screening to determine if expedited processing should apply.

2. Thus, it appears that the Administrative and Operations Manager (AOM) is permitted to accelerate procedures in cases involving highly vulnerable asylum seekers. Specifically, the SOP indicate that:

As a general rule, scheduling of new arrivals shall be done on a first come first served basis. That said, special categories may be selected for prioritization in scheduling. For instance, the following categories of persons referred to the RSD Unit may be prioritised for RSD interviews:

• Applicants with serious and urgent protection/security problems including detention;
• Applicants who require urgent medical assistance;
• Unaccompanied minors;
• Elderly at risk; and
• Women and Girls at Risk.

5.7.2 Description of the features of the accelerated procedures in comparison with the standard procedure.

1. According to the SOP:

   Expedited processing may vary based on the urgency of the case. Normal expedited processing should be understood as prioritizing a case for processing, though continuing within the normal processing procedures, i.e. cases sent to the upcoming Task Force and RC for final decision.

   Where a case is deemed extremely urgent and cannot wait to be processed according to the normal procedures, it may be sent directly to the Commissioner for review and forwarded to the Chairman of the Refugee Committee for signature, bypassing the regular procedures of the Task Force and Refugee Committee meetings.

   In the most urgent of cases, a formal interview and/or assessment may be by-passed, in the event that sufficient, reliable and credible information is made available to the RSD Supervisor satisfying the requirements for refugee status, after which the RSD Supervisor may provide a loose minute to the Commissioner, on which basis a decision may be made, following the above procedure."⁵²

2. The SOP thus aptly describe the different features of the accelerated procedures in comparison with the standard or normal procedures.

5.8. Appeal and remedy

5.8.1 Whether national laws and regulations provide for appeal. If yes, within what timeframe? When does the period for lodging an appeal begin to run?

1. The Refugees Act, as read with the Refugees Regulations, provide for appeals against the decisions of the Refugee Committee. Section 11 of the Refugees Act provides that:

2. It is therefore clear from the text of section 11 of the Refugees Act that an appeal to the Minister against the decision of the Refugee Committee must be lodged within 14 days from the date of the decision of the Committee. Section 11(1) proceeds however to grant the Minister the power to grant an extension of time within which to lodge an appeal.

3. It is also interesting to note that section 11(2) of the Refugees Act states that the decision of the Minister in respect of the appeal is final and that it is not subject to appeal or review. This position however has been untenable since the adoption of the Constitution of Malawi of 1994 which is the supreme law of the land. Section 108(2) of the Constitution provides that “The High Court shall have original jurisdiction to review any law, and any action or decision of the Government, for conformity with this Constitution.”

4. Section 11(4) of the Constitution proceeds to state that "Any law that ousts or purports to oust the jurisdiction of the courts to entertain matters pertaining to this Constitution shall be invalid."

5. The net effect of these constitutional provisions is that section 11(2) of the Refugees Act is inconsistent with the Constitution and section 5 of the Constitution provides that:

5.8.2 Whether national laws and regulations designate an authority responsible for assessing appeals. What is its administrative status (administrative or judicial)? Is it independent from the first instance authority?

As shown already, above, the appellate authority that the law designates is the Minister responsible for homeland affairs. The appellate process is therefore administrative rather than judicial or quasi-judicial. The Minister however is independent from the Refugees Committee which is the first instance authority.

5.8.3 Whether the reasons for not granting refugee status, whether in fact or law, are stated in the decision, and whether such information is shared with the asylum-seeker in writing as soon as possible to allow him/her to lodge an informed appeal. Further, whether the asylum-seeker informed verbally in a language he or she understands of the reasons for the decision, his or her right to appeal an adverse decision, and the applicable timeframes and procedures for such appeal.

Where an asylum application is unsuccessful, the Refugee Committee communicates its decision to the applicant in writing and as soon as possible. In practice, the Committee explains to the applicant that if he/she is not satisfied with the Refugee Committee’s decision, he/she is free to appeal to the Minister within 14 days from the date of the Committee’s decision.

5.8.4 Whether the appeal permit considerations of both fact and law based on reliable, accurate, and up-to-date information

1. The appeal process allows for considerations of fact and law to be made. According to the SOP:

   When reviewing the substance of the appeal on the basis of the individual file and all other available evidence, the Appeals Panel shall consider the following:

   • Whether a wrong conclusion on material facts was made on first instance; and/or

   • If the law was erroneously interpreted; and/or

   • If there are new elements regarding the initial reasons for seeking asylum or new reasons for seeking asylum (e.g. changes in the situation in the country of origin or other sur place reasons);

   • Reasons for inability to attend and present evidence in person during the first instance interview (the burden of proof is on the asylum seeker); and/or

   • Allegations related to failure by Eligibility Officer to uphold set procedural standards (the burden of proof is on the asylum seeker); and/or

   • Allegations related to the integrity or quality of the interpreter (the burden of proof is on the asylum seeker)." [Emphasis added]

2. It emerges from these provisions that the appeal process includes consideration of relevant facts and the prescriptions of law as are appropriate in the circumstances of each case.

5.8.5 Whether an appeal interview or hearing is provided to allow the asylum-seeker to present and be questioned on the appeal stage's evidence.

Regulation 5(2) of the Refugee Regulations provides that the asylum seeker may present evidence during the appeal and also be questioned on the same. Th regulation provides that:

On receipt of the notice of appeal against a decision of the Committee, the Minister shall—

1. consider and determine the appeal; or

2. require the attendance of the person making the appeal before the Minister or order such person to provide to the Minister in writing such further information as the Minister may require and thereafter determine the appeal.

5.8.6 Whether the appeal has a "suspensive effect," that is, the asylum-seeker is allowed to remain on the territory until a final decision on the appeal has been made.

1. The SOP provide that:

   Once the Applicant lodges an appeal, it will serve to stay any proceedings against the Applicant until such time as the appeal is decided. The Applicant shall continue to enjoy the rights accorded to him/her as registered Applicant for RSD.

2. Thus, in practice, the appeal against the decision of the Refugees Committee has as suspensive effect in respect of any potential deportation until the appeal is finally determined.

5.9. Asylum seekers with specific needs

5.9.1. Children

Whether national laws and regulations provide for special measures for asylum-seeking children?

1. The SOP make special provisions and measures for asylum-seeking children. At paragraphs 48-50, the SOP provide that:

   It should be noted that every child has a right to apply and make an independent claim regardless of his or her age. The registration procedures should facilitate the immediate identification of such child applicants and ensure prompt notification to the RSD Unit of the existence of such Applicants for RSD scheduling purposes.

   As a general rule, a best interest assessment (BIA) should be conducted to determine the appropriateness of interviewing for RSD a child Applicant who is of young age. Depending on the child Applicant’s personal and contextual circumstances and the circumstances of the case, a BIA may be used to assess whether pursuing a RSD interview is in the child’s best interest.

   Such a BIA can also inform the selection of an appropriate interview environment and child friendly and age-appropriate interviewing techniques and/or recommend the presence of a support person to facilitate the child’s account.

2. Paragraph 52 of the SOP proceeds to elaborate that:

   “Factors to be taken into consideration when deciding whether an RSD interview is in the Child’s best interest: 1) the child’s age (usually the younger the child the more likely that an interview should only be conducted by a Child Protection Expert and only if it is believed that the child has information and the ability to articulate a claim), 2) the child’s level of psychological and mental development and maturity, 3) the Child’s capacity to understand the RSD process, 4) whether the child has made an RSD claim in his or her own right (i.e. Child Headed Households, or Unaccompanied Minors, Separated Children), 5) whether the information about the Applicant’s profile and experience in Country of Origin MUST be gathered from the Applicant in order to determine the claim, 6) Relevant information already available from other sources (such as COI, family members, caregivers, BIA, etc.), 7) any specific needs or vulnerabilities the child may have including but not limited to mental or physical disabilities, 8) length of time since the child Applicant left the country of origin and expected ability to recall and recount events, and the child’s age at time of departure, 9) the Child’s views and preferences.”

Whether child applications for asylum are processed on a priority basis than the regular procedure with reduced waiting periods at each stage of the asylum procedure and whether every effort is made to render a decision promptly and fairly, bearing in mind that such children will often have special protection and assistance needs.

As stated earlier, under paragraphs 15 and 52 of the SOP, there is provision that cases involving child asylum seekers are to be prioritised and expedited. Further, paragraph 56 of the SOP states that:

Applications for refugee status by Child Applicants may be processed on a priority basis where there is clear protection benefit to do so, such as access to a durable solution or to rights or assistance in the host country. Such a decision should be on a case-by-case basis.

Whether children principal applicants in an asylum procedure are entitled to a properly trained legal representative able to support them throughout the procedure.

1. Neither the Refugees Act, the Refugee Regulations nor the SOP seem to provide for an entitlement by child principal applicants to a properly trained legal representative to support them throughout the procedure. However, under paragraph 60 of the SOP, it is provided that:

   The Eligibility Officer shall ensure that during the RSD interview the child Applicant is accompanied by a designated adult representative who may be the child’s guardian or another appropriate adult who is trusted by the child. The role of the representative shall be to ensure that the child’s views are properly presented and expressed. Some minors may opt to present their claims on their own; the Eligibility Officer shall take a decision on this depending on the apparent maturity and capacities of the child. The Eligibility Officer must counsel such an Applicant on the need and role of a representative before taking a decision. Any decisions regarding representation shall, as always, be guided by the best interests of the child.

2. Thus, there is provision for a designated representative to accompany the child, but not necessarily a legally trained representative. As stated earlier however, in appropriate cases, the LAB does have a responsibility to provide legal aid to such children, which would include assuming the responsibility of a designated representative.

If a child's age is in doubt, whether an age assessment is conducted, and if so, by whom and following which procedure?

1. There does not appear to be any legally prescribed procedure for age assessment in cases where the age of the asylum seeker is in doubt. However, a couple of observations may be made.

2. Under paragraph 58 of the SOP, it is provided that:

   Where age is a relevant factor or consideration in the determination of an Applicant’s refugee status claim, it should be examined in the same way as any other material element in the Applicant’s claim.

3. The import of this paragraph under the SOP therefore is that some form of procedure for age assessment is conducted where the age of the asylum seeker is a material issue for consideration.

5.9.2. Person with disabilities

Whether there are special measures for the treatment of the asylum claims of persons with disabilities, whether they are treated as a priority, and whether they are allowed to be accompanied by a representative or guardian.

1. As earlier indicated, Paragraphs 15 and 52 of the SOD make provision that, among others, applications of persons with disabilities must generally be prioritised and expedited. Further to this, the whole Part I.2 of the SOP deals with the issue of “Applicants with a Disability”. This part generally provides for the need to treat applications with persons with disability with special sensitivity. The part however also seems to lean more heavily on the need to be particularly mindful about persons with mental disabilities and their special needs.

2. Paragraphs 67-69 of the SOP provide, in this regard, that if an asylum seeker is found to have mental disabilities:

   The Administrative and Operations Manager shall refer such case to medical personnel at the camp, or a specialized agency, which will then make a determination on the mental capabilities of the Applicant and especially his/her ability to understand the RSD process. Where a determination is reached that the Applicant’s mental disability is sufficiently serious as to affect the legal capacity of the Applicant, then a designated representative must be appointed to assist the Applicant in the RSD process. This role shall best be played by a staff member of UNHCR or other specialized agency dealing with refugee matters. The designated representative shall seek to obtain information and assistance from persons known to the Applicant, including from amongst other asylum seekers and refugees. After appointment of the designated representative, the Applicant should be rescheduled for another interview within the shortest time possible.

5.9.3. Women

Where women asylum-seekers are accompanied by male relatives, whether they are informed in private and in terms they understand that they may have a valid claim in their own right and that they have a right to make an independent asylum application at any stage.

[See 5.3.8 above].

5.9.4. LGBTIQ

Whether claims lodged by lesbian, gay, bisexual, transgender, or intersex, queer (LGBTIQ) individuals are treated as priorities, and whether claims related to LGBTIQ are admitted and processed on merits

Malawi’s RSD process does not prioritise claims made by the LGBTIQ community This is because same sex relations are not legally allowed in Malawi at the moment. The Immigration Act, for instance, classifies any homosexual person as a prohibited immigrant in Malawi.⁵³ The research could not establish the existence of any record of applications based on LGBTIQ status that have previously been lodged with the Refugees Committee, and let alone determined on the merits.

According to a US State Department study of 2021:

The government [of Malawi] continued to ban registration of perceived lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) asylum seekers on the basis that it was against the law. UNHCR continued to advocate for the Ministry of Homeland Security to reverse its decision and consider registration and processing of all arrivals, including LGBTQI+ cases.⁵⁴

The UNHCR itself has stated that:

“UNHCR Malawi works primarily in the Dzaleka refugee camp near the capital of Lilongwe, where there were more than 45,000 refugees and asylum-seekers in August 2020. 54 LGBTIQ+ individuals in the Dzaleka refugee camp, like their cohorts throughout the country, are at risk of discrimination and violence. This forces many to conceal their SOGI, limiting the ability of humanitarian actors to identify them, understand their protection needs and extend the services that they require. As a result, their protection and basic needs often go unmet and they have limited access to fair refugee status determination, psychosocial support, inclusive health services (including information on sexual and reproductive health) and economic empowerment projects. One of the reasons for the lack of LGBTIQ+-inclusive services is a significant knowledge gap among service providers regarding the protection concerns and specific needs of LGBTIQ+ individuals. Furthermore, many LGBTIQ+ individuals lack awareness of their rights, the legal environment in Malawi and how they can keep themselves safe and seek support in the case of violations.” [Emphasis added]⁵⁵

5.10. Recognition of refugee status

5.10.1 The average processing time, from the asylum claim registration to the decision on refugee status

[The author had not yet established from the appropriate authorities, the average time that it takes to process a refugee status claim]

5.10.2 The type of residence that the legislation provides to refugees.

Refugees are granted the right to live in Malawi, but their residence, as a general requirement, is confined to Dzaleka Refugee Camp. A standard clause in the letter granting refugee status states that:

As a refugee in Malawi, you shall be subject to the Laws of Malawi and to the jurisdiction of its courts and shall be obliged to all the measures for the maintenance of public order. You will continue to reside at Dzaleka Refugee Camp.

5.10.3 The duration of validity for refugee status once granted.

1. The duration of the status once granted is indefinite. Another standard clause in the letter granting refugee status states that:

   I am pleased to inform you that the Committee has granted you refugee status in Malawi with effect from (RC decision Date).

2. It does not state the expiry date. The cessation of refugee status is based on statutory grounds stated in section 12 of the Refugees Act.

5.10.4 Whether provision is made for the issuance of individual identity documents certifying their status, and if so, what the duration of such documents is.

Malawi issues individual identity documents certifying the status of asylum seekers and refugees in the country. This is also revealed by the WFP and UNHCR 2014 joint assessment above.⁵⁶ The refugee status card does not have a duration. The Convention travel document does have a duration of 5 years. The duration of an asylum seeker card was not established at the time of submission of this research Report.

5.10.5 Whether ID cards are also issued to family members recognized as refugees based on derivative status

Where refugee status is granted on derivative basis to family members, each member is still issued with an individual ID card.

5.10.6 Whether refugee status is affected by a change in family status or by the marriage, divorce, or legal separation of a family member, the death of the head of the family, or attainment of the age of majority?

Derivative refugee status is not affected by subsequent developments in the family relationship such as divorce, legal separation or death of the principal applicant, among other factors.

The SOP state, at paragraph 150, that:

In situations of family dissolution, for example through separation, divorce, death or subsequent loss of dependency (e.g. family members reach the age of majority, move away or marry) derivative status should be retained.

5.11. Recognition of alternative status

Whether national laws and regulations provide for any form of complementary or temporary protection, and if so, which one(s) and on which ground(s)?

5.12. Exclusion, cancellation, revocation, and cessation

5.12.1. Exclusion

Whether national laws and regulations provide for the exclusion from refugee status, and if so, on which grounds.

Section 6(1)(c) of the Refugee Act provide for the cancellation or revocation of its decision granting status. The section however does not provide for any grounds for the same. Considering that the Long title to the Act states that one of the major purposes of the Act is to give effect to refugee conventions as defined in the Act, it means that the grounds laid down under Article 33(2) of the 1951 Convention apply.

Whether the commission of a “serious non-political crime” is a ground for exclusion, and whether domestic legislation contains a definition of same. If so, which one?

The commission of a “serious non-political crime” is a ground for exclusion for consideration as a refugee in Malawi. Section 8(b) of the Refugees Act specifically provides that:

Whether exclusion is considered in the context of a determination of the admissibility of a claim

Exclusion is considered in the context of the determination of the admissibility claim in the sense that the eligibility officer is mandated to do a background examination of the facts relating to the applicant. If, in the course of such a background check, information emerges showing the existence of a ground for exclusion, the same is considered.

The standard of proof for exclusion.

National legislation or regulations in Malawi do not specifically indicate the standard of proof required for exclusion. However, the UNHCR in its Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, ⁵⁷states that:

“In order to satisfy the standard of proof under Article 1F, clear and credible evidence is required. It is not necessary for an applicant to have been convicted of the criminal offence, nor does the criminal standard of proof need to be met. Confessions and testimony of witnesses, for example, may suffice if they are reliable. Lack of cooperation by the applicant does not in itself establish guilt for the excludable act in the absence of clear and convincing evidence. Consideration of exclusion may, however, be irrelevant if non-cooperation means that the basics of an asylum claim cannot be established.”⁵⁸

Malawi uses this UNHCR standard. Thus, the Refugees Committee will decide to exclude where there is “clear and credible evidence”, or “clear and convincing evidence”, which is therefore above the threshold of balance of probabilities but lower than the criminal standard of beyond reasonable doubt.

5.12.2. Cancellation

Whether national laws and regulations permit the authorities to consider the cancellation of refugee status, and if so, what are the substantive grounds for cancellation set out in law?

1. The starting point in addressing this issue is section 6 of the Refugees Act. Section 6(1) provides that:

2. Thus clearly, the Refugees Act permits the Refugee Committee to consider cancellation of refugee status.

3. Under the SOP, paragraph 139 states that:

   Cancellation refers to the removal of refugee status from a person who was improperly granted refugee status. Information may come to light indicating that the person was not entitled to refugee status in the first place because, either s/he did not fall within the inclusion criteria or because s/he was falling within the exclusion criteria. Administrative error can also be a ground for cancellation.

4. Paragraph 140 then proceeds to state that:

   A recognized refugee should be processed under cancellation procedures if there is good reason to believe that the recognition may have been granted erroneously as a result of one or more of the following factors:

   1. Misrepresentation or concealment by the individual concerned or a third party of facts that were material to the refugee status determination. The relevant inquiry is whether an incorrect decision was made, rather than the fraudulent intent of the person whose words or actions led to the incorrect decision.

   2. Misconduct by the individual being the motivating reasons for the positive determination, for example threats or bribery.

   3. Misconduct or administrative error by a government official at any stage in the RSD procedure, for example, recognition in exchange for a bribe or other rewards or wrongful issuance of official documents."

Whether a person whose refugee status is cancelled is given access to a procedure for determining whether he or she qualifies for refugee status at present, and if so, whether this happens within the cancellation procedure or in separate proceedings.

There are no provisions regarding the status of a person whose status is cancelled, but he or she claims that he/she qualifies for refugee status at present. In view of the silence in the legal provisions, the implication seems to be that such a claim may not be raised and considered as part of the cancellation proceedings. Such a claim would have to come as a separate claim in separate proceedings.

Whether such person is provided with the assistance of an interpreter, if required.

Whilst there is no specific provision in this regard, the general scheme under the SOP is that wherever necessary in proceedings before the Committee or duly delegated officers, or before the Minister, interpretation services are provided to the affected person.

Whether such person is allowed legal counsel

The affected person is allowed to appear before the Committee or other body in the company of a legal practitioner/lawyer, although there is no provision that such legal representation is mandatory.

Whether such person is accorded a right to appeal or review such a decision by a different person or entity.

Section 11(1)(b) of the Refugees Act accords a person whose refugee status has been cancelled (revoked) by the Refugee Committee, to appeal against such a decision to the Minister. The section provides that:

Whether refugee status remains in place until a decision to cancel it has become final

In practice, the refugee status of an affected person remains in place until the decision by the Minister on appeal is finalized. The appeal has a suspensive effect on the decision by the Refugee Committee.

5.12.3. Revocation

Whether national laws and regulations contain provisions for the revocation of refugee status, and if so, on which grounds?

National law in Malawi provides for the revocation of refugee status, in terms of section 6(1)(c) of the Refugees Act. See the discussion under paragraph 5.12.1(a) above.

Whether national laws and regulations require that the affected individuals are informed of the reasons for revocation of the refugee status.

Malawian law requires that the decision to cancel or revoke refugee status must be justifiable in relation to the reasons given, and that the decision and reasons should be made in writing. This is a general requirement for all administrative and quasi-judicial decisions by all public institutions, bodies or authorities in Malawi under section 43 of the Constitution.

Whether the affected person is provided with an opportunity to challenge the decision, and if so, whether this happens before the authority responsible for determining refugee status? Further, whether the person has the opportunity to appeal with suspensive effect to a higher authority.

The affected opportunity has an opportunity to challenge the decision made by the Refugee Committee to cancel or revoke status. According to section 6(2) of the Refugees Act:

The Committee may, subject to sections 8 and 12, review cases of persons granted refugee status under this Act.

The import of the review procedure envisaged under this provision is that a person who is dissatisfied with a decision made by the Committee may first bring an application to challenge the decision by way of review. The Committee has power to review its own decisions. Secondly however, where this is unsuccessful, then the affected person can resort to the appellate process under section 11 of the Refugees Act.

Whether the person is provided with the assistance of an interpreter, if required.

An interpreter is provided for in all processes under the Refugees Act, Regulations and SOP wherever such interpretation is needed.

Whether the person allowed legal counsel

Legal representation is allowed, when an affected person has access to one. The SOD generally make provision for the right of any asylum seeker or refugee to use the services of a legal representative at various stages of the RSD process, including instances of cancellation or revocation of refugee status.

Whether refugee status remains in place until a decision to revoke it has become final.

As explained earlier in this Report, refugee status remains in place until a decision to revoke it has become final

5.12.4. Cessation

Whether national laws and regulations provide for cessation, and if so, on which grounds?

1. Section 12 of the Refugees Act provides for cessation of refugee status. It states that:

2. Thus, the proviso to section 12 of the Refugees Act clearly shows that Malawi law provides for an exemption for refugees who are able to invoke compelling reasons arising out of previous persecution for refusing to return to their country of nationality or former habitual residence.

Whether national laws and regulations require that each affected individual be informed of the reason for cessation of status and provide an opportunity for him or her to challenge the decision, and if so, which authority is responsible for receiving the application? Do laws and regulations provide an opportunity for an appeal with suspensive effect to a higher authority?

1. Regulation 4 of the Refugees Regulations made under section 13 of the Act, provides for matters of cancellation or revocation of the Refugee Committee’s decision granting refugee status. It provides that:

   1. The Committee shall not cancel or revoke its decision granting refugee status to any person without first giving that person an opportunity of being heard and of presenting evidence.

   2. Where the Committee has decided to cancel or revoke its decision granting refugee status to any person, it shall forthwith inform that person of the right of appeal to the Minister against the decision of the Committee.

2. Whilst the Regulation does not explicitly state that the Committee shall furnish the affected individual of the reasons for its decision to cancel or revoke refugee status, this is a cardinal requirement of the law under section 43 of the Constitution and the Committee is bound. Section 43 of the Constitution provides that:

3. Section 43(b) therefore makes it abundantly clear that the Committee is obliged to provide reasons in writing. The application of section 43 of the Constitution is not restricted to nationals only, but it applies to all persons who are subject to the jurisdiction of the Republic of Malawi. In terms of appeal, section 11 of the Refugees Act provides that:

4. This provision, read together with Regulation 4(2) of the Refugees Regulations clearly shows that an appeal against the decision of the Committee lies to the Minister responsible, who currently is the Minister of Homeland Security. Regulation 4(2) of the Refugees Regulations imposes an obligation on the Committee to "forthwith inform [the affected] person of the right of appeal to the Minister against the decision of the Committee." Regulation 5 then provides for the procedures for appeal to the Minister. It states that:

   1. An appeal to the Minister against a decision of the Committee shall be brought by giving notice of appeal in Form II set out in the Schedule.

   2. On receipt of the notice of appeal against a decision of the Committee, the Minister shall—

   1. consider and determine the appeal; or

   2. require the attendance of the person making the appeal before the Minister or order such person to provide to the Minister in writing such further information as the Minister may require and thereafter determine the appeal.

5. In respect of the question as to whether an appeal against the decision of the Refugees Committee to the Minister has suspensive effect in order to give meaning to the affected person’s right of appeal, whilst there is no expression provision to that effect, the same is arguably implied in the text of section 11 of the Refugees Act.

6. As shown above, section 11(3) of the Refugees Act provides that:

7. The natural implication of this provision therefore seems to be that prior to the final decision of the Minister, the person concerned may not be deported. In this regard, the suspensive effect of the appeal may be read into the Act.

Whether national laws and regulations contain provisions requiring authorities to consult with UNHCR when considering the cessation clause's application

1. Neither the Refugees Act nor the Refugees Regulations have an explicit provision requiring the responsible Malawian authorities to consult with the UNHCR when considering the application of the cessation clause under the Act. However, it is again arguable that this consultation can easily be read into the existing provisions of the Act. Section 3 of the Refugees Act provides for the composition of the Refugees Committee. As earlier discussed, it is this Committee that makes the relevant decisions on refugeehood including the application of the cessation clause. Section 3(2) of the Act provides that:

   The Representative of the United Nations High Commissioner for Refugees in Malawi or his designated representative or, in his absence, a representative of the Resident Representative of the United Nations Development Programme in Malawi shall be invited by the Committee to attend every meeting of the Committee as an observer but shall not have the right to vote.

2. The UNHCR thus has permanent observer status in the Refugee Committee. Observer status entails active participation in deliberations but, as the Act makes clear, the observer, UNHCR in this case, does not have decision-making (voting) powers on the Committee. The point however is that clearly, by being accorded permanent observer status on the Committee, prescribed by the law, the refugee law framework in Malawi provides a mechanism for continuous consultation with the UNHCR in all its refugee related decision-making processes, including the application of the cessation clause.

5.13. Persons found not to be in need of international protection

5.13.1 Whether persons found not to be in need of international protection are forced to return, and if so, whether the concerned person is detained before removal.

1. Persons found not to be in need of international protection in Malawi are deported, and forced to return if they do not voluntarily exit the jurisdiction within the time stipulated by the authorities.

2. A standard clause in the letter from the Refugee Committee declining to grant refugee status states that:

   Following this denial to grant you refugee status in Malawi, you will now be subject to the Immigration Laws of Malawi under which you will be considered as being illegally in the country and will be subject to deportation. If you are dissatisfied with the Committee’s decision, you are free to appeal to the Minister within 14 days from the date of the Committee’s decision.

3. Where such persons are found within the jurisdiction outside the period stipulated for them to leave the country, they are treated as prohibited immigrants and are detained in general prison facilities in the country.

5.13.2 Whether removal orders are in writing and shared with concerned individuals, and whether such orders provide the legal and factual grounds on which they are based and the available remedies.

1. Removal orders in Malawi are made by the Refugee Committee and are in writing and they provide both legal and factual grounds and also indicate the remedy of appeal to the concerned person.

2. Paragraph 144 of the SOP provides, in this respect, that:

   Cessation refers to the removal of refugee status from a person whose reasons for requiring international protection have ceased to exist and the person is therefore no longer in need of international protection. Circumstances under which cessation proceedings may be commenced are clearly set out under Section12 of the Refugees Act and shall be applied strictly within these provisions. Cessation should only be undertaken where the facts that would bring the individual under the cessation clause have been established, and there do not exist other factors indicating continued need for international protection or other compelling reasons not to discontinue refugee status.

5.13.3 Whether the State signed a readmission agreement, and if so, with which country(ies).

[This information was not established]

6. Rights of refugees

6.1. Principle of non-discrimination

6.1.1 Whether the principle of non-discrimination is set out in the law

1. The principle of non-discrimination is set out in various legal instruments including the Constitution and legislation. The principle is first articulated in the fundamental principles of the Constitution in section 12. Section 12(1)(e) of the Constitution provides that:

2. It is significant to note is that this principle emphasises that “all persons have equal status before the law.” Under the Bill of Rights, Section 20 of the Constitution is the framework provision on the principle of non-discrimination. It provides that:

3. Further to section 20, other thematic provisions under the Bill of Rights also emphasise the principle of non-discrimination. These include section 23(1) on children⁵⁹ and section 24(1) on the rights of women.⁶⁰ A number of statutory instruments also place emphasis on the principle of non-discrimination.

4. The Gender Equality Act,⁶¹ as the name suggests, is a piece of legislation founded on the principle of equality. The long title to the Act, which sets out the broad objectives of the Act, provides that it is:

   An Act to promote gender equality, equal integration, influence, empowerment, dignity and opportunities, for men and women in all functions of society, to prohibit and provide redress for sex discrimination, harmful practices and sexual harassment, to provide for public awareness on promotion of gender equality, and to provide for connected matters.

5. Another piece of legislation is the Disability Act ⁶²which also, when read holistically, has as one of its major objectives, the principle of non-discrimination with specific reference to persons with disabilities. Section 2 of the Act defines discrimination (against persons with disabilities) in the following terms:

6.1.2 Whether there is legislation aimed at combating racism, racial discrimination, xenophobia, and related intolerance, and if so, whether it includes refugees.

1. Apart from the general provisions under the Constitution, in particular section 20(1) that, among others, prohibits discrimination on grounds of race, colour, sex, religion, political or other opinion, national, ethnic or social origin, disability, property, or other status or condition, there is no specific legislation aimed at combating racism, racial discrimination, xenophobia, and related intolerance.

2. However, considering that that the Supreme Court of Appeal has taken the broad, generous and purposive approach to constitutional interpretation, it is submitted that section 20 is broad enough to be invoked against conduct amounting to any of these vices, including in relation to refugees.

6.2. Obligations and rights of refugees

6.2.1 Whether refugees are issued with a travel document if required, the format of such document, and its duration. Further, what fees are charged, if any.

Yes, refugees in Malawi are issued with a travel document where the same is required.

6.2.2 Whether national laws and regulations provide for freedom of movement.

Freedom of movement is guaranteed under section 39 of the Constitution of Malawi. It provides that:

6.2.3 Whether national laws and regulations permit refugees to choose their place of residence and move freely within the territory, or whether there is an encampment policy in place. If yes, whether there are designated areas or settlements for refugee residence.

1. Whilst the Constitution provides for freedom of movement, as shown above, Malawi entered a reservation in respect of the right of freedom of movement. In the Nsabimana case (above), the High Court held that these reservations are valid and that the Government is entitled to limit refugees’ right to freedom of movement notwithstanding the provisions of section 39(1) of the Constitution. The Nsabimana case has not yet been reversed or departed from by either the Supreme Court of Appeal or another court of coordinate jurisdiction.

2. As discussed earlier, Malawi has an encampment policy and refugees are encamped at Dzaleka Refugee Camp in Dowa District in central Malawi. Recently, as earlier discussed, the Government announced that all refugees in the country who live outside this refugee camp must relocate to the camp. The decision, as at December 2022, is yet to be fully implemented.

6.2.4 Whether national laws and regulations provide for family unity, and what means of proof for family relationship are accepted.

National law in Malawi provides for family unity as discussed under 4.4.1 above. No specific means of proof of the existence of a family relationship have been prescribed under the law. But perhaps guidance can be sought from such provisions as the ones on proof of parentage under section 6 of the CCPJA. These include examining the name of the parent entered in the register of births; medical (or scientific) test, and public knowledge. In addition, any other matter that the decision maker may consider relevant.

6.2.5 Whether national laws and regulations provide for the civil registration of children born in the country, and in practice, what is the birth registration rate amongst the refugee children population?

1. The National Registration Act (Cap 24:01 of the Laws of Malawi) is an Act that provides for compulsory Registration for certain categories of persons in Malawi. Section 9 of the Act provides that:

   1. Subject to such regulations as shall be made by the Minister, every person of or above the age of sixteen years—

   1. who is a citizen of Malaŵi; or

   2. who, not being a citizen of Malaŵi, has been granted permanent residence permit, temporary employment permit or business residence permit under the Immigration Act to reside in Malaŵi, shall qualify to be registered under this Act and shall apply to

   the district registrar in the area in which he ordinarily resides, for registration within one month of his acquiring the relevant qualification as set out in this section.

   2. Every applicant shall submit to having his fingerprint and photograph taken by the district registrar or a person acting under his authority.

2. It is thus clear from this provision that whilst Malawian law provides for the civil registration of children born in the country generally, these, under the national registration law, do not include refugees. The list of non-nationals who have been accorded the right to be registered in Malawi are those who have "been granted [a] permanent residence permit, temporary employment permit or business residence permit under the Immigration Act to reside in Malaŵi."

3. It is unclear why the law excluded asylum seekers and refugees from the list of foreign nationals required to be registered under the National Registration Act.

6.2.6 Whether national laws and regulations provide for freedom of religious practice and religious education?

Section 33 of the Constitution provides that:

6.2.7 Whether national laws and regulations provide for equal access to public elementary education

1. The UNHCR has observed, correctly, that the integration of refugee education into national systems holds the possibility of improving access and quality of learning by refugees and migrants. If proper integration is achieved, this will enable refugee children to attend neighbouring public schools and will also ensure synergies with various key actors in improving conditions of learning for both refugees and children from surrounding host communities.

2. Refugees and host communities alike will benefit from established education. However, in view of the reservations entered by Malawi in respect of ….

6.2.8 Whether refugee children are included in national child protection systems

6.2.9. Whether national laws and regulations provide for equal access to secondary education and university

Section 25 of the Constitution provides that:

6.2.10 Whether public relief/social assistance laws include refugees

1. Public relief and assistance laws in Malawi include refugees. Public relief and social assistance is provided within the framework of the Disaster Preparedness and Relief Act.⁶³ The Disaster Preparedness and Relief Act defines disaster in the following terms:

2. It is evident that this law includes refugees in its conception.

6.2.11 Whether national laws and regulations provide for access to courts and legal assistance for refugees

1. The Constitution provides for the right of access to courts for every person, and this includes refugees and asylum seekers. Further, the Constitution also guarantees the right to legal assistance particularly in criminal matters.

2. Section 41(2) & (3) of the Constitution provides that:

3. This right therefore provides some comprehensive guarantee of the right of access to courts by all persons in Malawi including refugees. Further, Section 42(1)(c) of the Constitution provides that:

   Every person who is detained, including every sentenced prisoner, shall have the right to consult confidentially with a legal practitioner of his or her choice, to be informed of this right promptly and, where the interests of justice so require, to be provided with the services of a legal practitioner by the State.

4. Section 42(2)(f)(v) of the Constitution provides that:

   Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right as an accused person, to a fair trial, which shall include the right to be represented by a legal practitioner of his or her choice or, where it is required in the interests of justice, to be provided with legal representation at the expense of the State, and to be informed of these rights.

5. Finally, section 44(4) of the Constitution provides that:

6. In terms of statute, the Legal Aid Act⁶⁴ was enacted in 2013 “to make provision for the granting of legal aid in civil and criminal matters to persons whose means are insufficient to enable them to engage private legal practitioners and to other categories of persons where the interests of justice so require.”⁶⁵ Sections 18 and 19 of the Legal Aid Act have elaborate provisions on the granting of legal aid in criminal matters and civil matters respectively, and they make no distinction between citizens and non-citizens.

7. The idea behind the non-discriminatory approach between citizens and non-citizens in respect of the provision of legal aid in Malawi is consistent with the fundamental principle stated in section 12(1)(d) of the Constitution which states that:

6.2.12 Whether national laws and regulations provide for access to artistic rights and patent rights

Malawian law makes provision for access to artistic and patent rights.

6.2.13 Whether national laws and regulations provide for the acquisition of movable and immovable property

Malawian law has a clear guarantee on the right to property.

6.2.14 Whether national laws and regulations provide for the right to work and the right to own a business

The Constitution of Malawi makes clear provision for the right to economic activity. Section 29 of the Constitution provides that:

6.2.15 Whether national laws and regulations provide for financial inclusion

1. The laws and regulations in Malawi are generally permissive of financial inclusion. The controls that banks and other financial institutions impose in respect of banking services are internationally recognized and applied “Know Your Customer” (KYC) or customer due diligence requirements. Thus, section 51(1)(a) of the Banking Act, 2010,⁶⁶ provides that:

2. However, in practice, refugees generally face a lot of constraints in the area of financial inclusion.

3. The UNHCR has highlighted some of the practical challenges faced by asylum seekers and refugees in the area of financial inclusion.⁶⁷ In a 2019 Report, the UNHCR stated that:

   New Finance Bank [now called My Bucks Bank], the first bank to open inside a camp in Southern Africa, takes an innovative approach to serving the underserved in Malawi. Here, refugees have limited opportunities to be productive, facing legal restrictions to their movement, and lacking access to land to cultivate and education to expand their futures. The camp itself is overcrowded, and as a protracted situation, UNHCR and partners lack sufficient funding to comprehensively meet the needs of the population. The bank aspires to make people’s lives better through convenient and simplified banking using technology and partnerships. For UNHCR this heralds a new approach for the financial inclusion of refugees. For people like Emery, a refugee working with the bank, it is transformative.

4. The Report states that the services that My Bucks Bank provides at Dzaleka Refugee Camp include savings accounts, group lending, ATM access services, Forex Services, provision of training courses on financial literacy and business skills, and tailored services according to the needs of the person of concern.

5. The Report states, quoting an interviewee called Emery, that:

   Before the bank came, people in the camp kept the little money they had under their beds, and no one could access loans.

6.2.16 Whether national laws and regulations include refugees in Labour legislation and social security.

6. As stated in 2.1.1(a) above, Malawi entered a reservation in respect of article 24 of the 1951 Convention, which deals with matters of labour legislation and social security. Among other things, Article 24(1)(b) of the 1951 Convention provides that:

   The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme).

7. Malawi’s reservation on the whole Article 24 was general, stating that “the Government of the Republic of Malawi considers these provisions as recommendations only and not legally binding obligations.”

8. Consistent with this reservation, national laws and regulations in the country do not include refugees in labour legislation and social security guarantees on the same general footing as the general population. As explained earlier however, refugee matters are dealt with under the Disaster Preparedness Act and perhaps this coverage for humanitarian assistance under that Act is a form of some social security guarantee.

6.2.17 Whether refugees with disabilities are included in relevant policies and programs providing access to requisite services.

1. Section 30(1) of the Constitution provides for a broad right to development, and states that:

2. Further, section 30(4) of the Constitution provides that:

3. These provisions therefore make it clear that in coming up with national development policies, persons with disabilities are among those persons to be given special consideration.

4. In addition, Section 13 of the Constitution provides for non-binding principles of national policy which however provide a constitutional guide to the development and execution of national policies. Section 13(g) provides that:

5. Further to the Constitution, Malawi has a Disability Act,⁶⁸ which applies to every person with disability in the country without discrimination on the basis of nationality.

6. Section 3(1) of the Act provides that:

7. As stated above, the principle of non-discrimination which is entrenched under section 20 of the Constitution applies, and without a prescription of law that precludes non-nationals or refugees from the benefit of the legislation, the Act applies to refugees with disabilities. In addition to section 20 of the Constitution, section 12(1)(d) of the Constitution perhaps makes things clearer by providing that:

   the inherent dignity and worth of each human being requires that State and all persons shall recognize and protect human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities whether or not they are entitled to vote.

8. By stating that the fullest protection of human rights applies to the rights of “all individuals, groups and minorities whether or not they are entitled to vote,” the Constitution clearly envisages such groups or minorities as asylum seekers and refugees. Indeed, in the Aden Abdihaji case, the High Court invoked section 12(1)(d) of the Constitution [at the time it was numbered as section 12(iv)] to vindicate the rights of asylum seekers in Malawi.

9. In 2018, Malawi adopted the National Disability Mainstreaming Strategy and Implementation Plan (NDMS&IP), 2018 – 2023. It is a broad policy on matters concerning persons with disabilities in Malawi and, according to the Ministerial foreword, the Plan is located “in the field of disability-inclusive development thereby ensuring a coordinated and harmonized approach to disability and development in Malawi in line with Article 32 of the UNCRPD.”

10. Article 32(1)(a) of the UNCRPD promotes the adoption of measures aimed at “Ensuring that international cooperation, including international development programmes, is inclusive of and accessible to persons with disabilities.” The principle of inclusivity runs through the text of the UNCRPD.

11. It is worth mentioning however that whilst the general policy framework broadly speaks of inclusiveness of persons with disabilities, the whole policy makes no reference whatsoever to non-citizen persons with disabilities, let alone asylum seekers or refugees with disabilities, as persons with disabilities with double vulnerabilities, and this is a policy area which needs revisiting when the next policy instrument is adopted.

6.2.18 What are refugee duties to the country of his or her refuge?

Section 9 of the Refugees Act provides for the “obligations of a refugee.” It states that:

Any person granted refugee status under this Act shall be subject to the laws of Malawi, jurisdiction of courts in Malawi and to all measures taken for the maintenance of public order.

6.2.19 Whether refugees are required to obtain an exit visa to depart the country for resettlement or other purposes

Malawi does not have a law or policy on exit visas. The only circumstances where exit from the jurisdiction is restricted is when a person, including any asylum seeker or refugee, is facing criminal charges before the Courts, in which case such person must comply with travel restrictions that the Court may impose from time to time, including the requirement to seek permission from the Court to leave the country for any reason whatsoever.

6.2.20 Whether there are nationality limitations on the granting of such visas

The explanation in 6.2.19 above applies.

6.3. Managing mass influx and emergencies

6.3.1 Whether national laws and regulations provide measures to manage mass influxes.

1. The Refugees Act does not expressly mention the term “mass influx.” However, Regulation 8(3) of the Refugees Regulations made under section 13 of the Refugees Act provides that:

   3. In case of persons who have entered Malawi as refugees in accordance with a group determination procedure, the Committee and the Representative of the United Nations High Commissioner for Refugees shall jointly ascertain the numbers and particulars of such persons in accordance with a procedure therefor to be determined by the Committee.

2. Whilst the group determination procedure is not necessarily synonymous with situations of mass influx, almost invariably, mass influx situations call for group determination procedure and hence, Regulation 8(3) of the Refugees Regulations is particularly relevant in the management of mass influx situations, at least in part.

3. In addition to the Refugees Regulations, a situation of mass influx of refugees is covered as an instance of a disaster under the Disaster Preparedness Act where, under section 2, a disaster is provided to mean, among other things, “(d) an occurrence (whether natural, accidental or otherwise) on a large scale which has caused or is causing or is threatening to cause influx of refugees into or out of Malawi.”

6.3.2 Whether national laws and regulations provide for procedures to respond to mass influx situations.

The answer to this question is basically the same as provided for above.

6.3.3 Whether national laws and regulations provide for prima facie status.

National laws in Malawi provide for prima facie status of refugees. This is evident from the provisions of Regulation 8(3) of the Refugee Regulations, which provides for group status determination.

6.3.4 Whether national laws and regulations provide for identification, disarmament, and separation of combatants from the refugee population and internment at a safe location from the border.

No laws or regulations could be found which provide for the identification, disarmament, and separation of combatants from the refugee population and internment at a safe location from the border.

6.3.5 Whether national laws and regulations provide special protection and assistance measures for children formerly associated with armed forces or groups regarding their demobilization and rehabilitation.

1. Although there are no specific express provisions, directly from legislation or subsidiary legislation that provide for special protection and assistance measures for children formerly associated with armed forces or groups regarding their demobilization and rehabilitation, it is noteworthy that Principle 4 of the Guiding Principles in Matters Concerning Children, provided for in the Third Schedule to the CCPJA, and made under section 88 of the CCPJA, provides that:

   to exercise, in addition to all rights states this Schedule and this Act, all the rights set out in the United Nations Convention on the Rights for the Child and the Organization of African Union Charter on the Rights and Welfare of the African Child with appropriate modifications to suit the circumstances in Malawi that are not specifically mentioned in this Act.

2. This entails that the provisions of the CRC and the African Charter on the Rights and Welfare of the Child form part of domestic law to the extent that the rights stated therein are not provided for under the CCPJA. In this regard, Article 39 of the CRC contains provisions that are rather germane to the present issue. The Article provides that:

   States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.

3. Children are not supposed to engage in armed conflicts and therefore children formerly associated with armed forces or groups who require demobilization and rehabilitation are therefore child victims in terms of Article 39 of the CRC and the State is under an obligation to promote their physical and psychological recovery and social reintegration, and in an environment which fosters their health, self-respect and dignity. In terms of Principle 4 of the Guiding Principles in Matters Concerning Children under the CCPJA, this is the current position under Malawian domestic law.

7. Durable solutions

7.1. Voluntary repatriation

7.1.1 Whether there is any legal and administrative framework on voluntary repatriation that sets out related refugees' rights and entitlements.

1. Section 12 of the Refugees Act makes provision for a number of circumstances that lead to the cessation of refugee status. Sections 12(a) – 12(d) provide that:

2. Although the provision does not expressly refer to the term “voluntary repatriation”, nor spells out related refugees’ rights and entitlements, it at least suggests that refugee status may cease under the specified voluntary situations in which the refugee locates himself/herself. Further, Paragraph 167 of the SOP adds that the UNHCR shall provide the RSD Unit for relevant data and facilitate case closures for refugees in Malawi “through spontaneous departures, voluntary repatriation or resettlement to a 3^rd country.” Thus at a minimum, these provisions show that there is a legal and administrative framework on voluntary repatriation in Malawi.

7.1.2 Whether repatriation arrangements guarantee family unity.

1. Whilst domestic refugee law does not expressly provide for guarantees of family unity, as stated at 4.4.1 above, the import of section 22(1) of the Constitution which provides that “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State,” is that part of such protection of the family unit is in the form of respect for family unity, including for the families of asylum seekers and refugees.

2. It follows therefore that in making refugee repatriation arrangements, the State of Malawi is constitutionally bound to guarantee family unity for the refugees.

7.1.3 Whether repatriation arrangements identify and address returning refugees' specific needs – including women, children, older people, persons with disabilities, and others with particular concerns.

[Information not verified]

7.1.4 Whether repatriation arrangements guarantee that unaccompanied or separated children do not return unless they are returning to family members or other specific and adequate reception facilities, and that adequate care arrangements have been put in place.

[Information not verified]

7.1.5 Whether repatriation arrangements guarantee that refugees receive updated and accurate information on the country of origin.

[Information not verified]

7.1.6 Whether refugees are required to obtain an exit visa to depart.

Already addressed at paragraph 6.2.19 above, where the Report discusses the point that Malawi does not have a law or policy on exit visas.

7.2. Local Integration

1. As stated earlier, the Government of Malawi entered a reservation in respect of Article 34 of the 1951 Convention, where it stated that it “is not bound to grant to refugees any more favourable naturalization facilities than are granted, in accordance with the relevant laws and regulations, to aliens generally.”

2. The Malawi Citizenship Act provides, under section 21(1) of the Act, that:

3. Some of the conditions for one to qualify for naturalisation, such as proof of financial solvency, would be very difficult for most refugees in view of the policies of the Government, pursuant to the reservations that it entered, such as restrictions on freedom of movement leading to adoption and enforcement of an encampment policy.

4. The WFP & UNHCR Joint Assessment Report states that the refugees face:

   major challenges regarding local integration prospects because of the GoM’s [Government of Malawi’s] existing reservations on the 1951 Geneva Convention, and the negative perception of the public and authorities to the local integration of refugees. Refugees have been discouraged from applying for naturalization as their applications are invariably refused, often on the grounds that they are in a position to return to their countries of origin.⁶⁹

7.2.1 Whether there are measures in place that make it possible for refugees to be self-reliant; and if so, which ones?

1. In view of the reservations outlined above that the Government of Malawi entered in respect of freedom of movement and other rights guaranteed under the 1951 Convention, the Government has adopted policies that are quite restrictive on the refugees’ potential to be self-reliant.

2. The WFP & UNHCR Joint Assessment Report states, in this regard, that:

   The Government of Malawi’s encampment policy restricts freedom of movement and the right to employment limits refugees’ opportunities to earn a living. The camp is very small, congested and surrounded by local villages, and so there is insufficient access to agricultural land for most of the population. Although some have managed to engage in some small-scale self-employment activities, the majority of refugees are completely reliant on food aid and other external assistance for survival.⁷⁰

7.2.2 Whether nationality legislation facilitate the naturalization of refugees? If so, what are the measures in place?

1. There are no explicit provisions under Malawi’s refugee law on the naturalisation of refugees. However, refugees are able to acquire Malawian citizenship where they satisfy certain general immigration requirements.

2. Refugees have been discouraged from applying for naturalization as their applications are invariably refused, often on the grounds that they are in a position to return to their countries of origin.⁷¹

3. Levi Mvula,⁷² states that

   Officially, there are isolated cases where the government has granted citizenship to refugees. A high profile example involved a young Rwandan girl Kwaigaikira, who was selected to go to a public university but could not go due to high school fees she was supposed to pay. The girl was granted citizenship and received a Chinese scholarship where she is pursuing studies in pathology.⁷³

4. He proceeds to state that “Regardless, some refugees have attained the citizenship status through marriage and are accorded the full rights.”

7.2.3 Whether refugees or former refugees can acquire permanent residence? If so, what are the requirements, including documentation requirements?

1. The Refugees Act and the Refugee Regulations do not provide for a procedure for refugees or former refugees to acquire permanent residence in Malawi. However, being immigrants, albeit of a special category, refugees may still be granted permanent residence status under general immigration law. The Immigration Act⁷⁴does not detail specific qualifying criteria for permanent residence. Section 22(3) of the Immigration Act simply provides that:

   The Minister may, in his discretion, issue a permanent residence permit to any person who has applied therefor and who is in the opinion of the Minister a desirable immigrant.

2. It follows, therefore, that if the Minister, in his/her discretion considers that a refugee or former refugee is a desirable immigrant in Malawi, he/she may grant such person permanent residence.

7.2.4 Whether nationality legislation provides for the acquisition of the nationality for refugee children born in the country immediately at birth or before/upon majority.

1. Refugee legislation in Malawi does not provide for the acquisition of citizenship of refugee children by birth. Similarly, Malawi citizenship law does not provide for acquisition of citizenship by refugee children whether at birth or upon attaining the age of majority. Sections 3, 4 and 5 of the Malawi Citizenship Act⁷⁵ provide for various ways in which Malawi citizenship is acquired.

2. According to section 3 of the Malawi Citizenship Act:

3. Section 4 of the Act then provides for the acquisition of citizenship by birth. It states that:

4. This provision makes it clear that in order for one to qualify as a citizen by birth, one of his or her parents must be a citizen of Malawi. Thus, where the parents are refugees and none of them is a Malawian citizen, a child born to such parents does not acquire Malawi citizenship.

5. Section 5 of the Malawi Citizenship Act proceeds to provide for citizenship by descent but this is inapplicable to the matter under consideration as this category of citizenship only applies to persons born outside Malawi after the 5th day of July, 1966.

7.2.5 Whether national laws or policies allow refugees to access, or prevent them from accessing, any active migration or skilled entry schemes?

As stated earlier, one of the main legal basis for the restriction of access to certain fundamental rights by asylum seekers and refugees lies in the various reservations that Malawi entered upon acceding to the 1951 Convention. The UNHCR Has submitted that:

Whilst acceding to the 1951 Convention, Malawi made reservations to the following Articles of the Convention: Article 7 Exemption from Reciprocity, Article 13 Movable and Immovable Property, Article 15 Right of Association, Article 19 Liberal Professions, Article 22 Public Education, and Article 24 Labour Legislation and Social Security. The Government of Malawi intimated that it considers the above as mere recommendations that do not have binding efficacy to Malawi as a refugee hosting State. Malawi also indicated that it reserved a right to limit enjoyment of the right to wage-earning employment (Article 17 of the 1951 Convention) and to freedoms of movement and choice of place of residence (Article 34 of the 1951 Convention regulating naturalization).⁷⁶

It is apparent that these reservations cover limitations on a wide range of area of active economic life of the refugee, including liberal professions, right to wage-earning employment, and freedom of movement and choice of residence. These restrictions place significant obstacles for refugees to access active migration and skilled entry schemes.

However, it is also significant to observe that section 29 of the Constitution guarantees the right of every person to work and to pursue a livelihood any where in the country. In this connection, it should further be noted that Malawi did not enter a reservation in respect of the right to self-employment guaranteed under Article 18 of the 1951 Convention. The net effect of this situation therefore is that a refugee, even whilst confined to Dzaleka Refugee Camp, has the right to self-employment and to this extent, not completely shut off from accessing migration and skilled entry schemes.

7.2.6 Whether there are any arrangements to recognize academic, professional, and vocational diplomas and certificates acquired by refugees in their country of origin?

Although neither the Refugees Act nor the Refugee Regulations make provision for the recognition of professional and vocational diplomas and certificates acquired in their country of origin, it is noteworthy that under Form 1 made under the Refugee Regulations, which is the Form for “Application of Refugee Status in Malawi”, Part 11 requires the applicant to provide details of his/her Educational or Professional Qualifications or any other Educational Skill. This, by implication, entails that the regulations allow for the recognition of such qualifications.

In practice, a number of professional refugees, such as teachers and medical professionals, have their credentials recognized and have been allowed to use their skills in the country.

Indeed, the US Department of State reports that:

“In general, the government did not allow refugees to seek employment or educational opportunities outside the camp. Most refugees were dependent on donor-funded humanitarian assistance. A small number of refugees with professional degrees received permits to pursue employment and other opportunities outside the camp, but these refugees may be compelled to return to camps if the order to return to camps is implemented.”⁷⁷ [Emphasis added]

7.2.7 Whether refugees and their host communities are included in national development plans?

1. Refugees and host communities are included in Malawi’s national development plans. For instance, in the Malawi Vision 2063 document, which is the country’s overarching development policy framework, it has been stated that:

   We shall promote inclusiveness in our human capital development…We shall expand the provision of necessary social services and opportunities for minority and marginalized groups, including persons with disabilities, to participate in wealth creation activities. To ensure shared prosperity, marginalized and vulnerable groups, including older persons, orphaned children, persons with disabilities and refugees will be provided with improved safety nets that have effective delivery mechanisms.⁷⁸

7.2.8 Whether there are any measures to enhance the empowerment of displaced women and girls including promoting women's leadership, strengthening women's and girls' capacities, especially by enabling their access to quality education, and enhancing their food security, livelihood opportunities, and freedom of movement and economic independence.

Malawi ratified the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). The country however does not have a policy or domestic legislation to fully implement the provisions of the Kampala Convention.

On freedom of movement, paragraph 6.2.3 above refers. Malawi has an encampment policy and over the past two years, the Government has demonstrated greater willingness to enforce the policy.

---

1. Government of Malawi Refugee Status Determination: Standard Operating Procedures, Para.8.↩︎

2. See UNHCR Fact Sheet: Malawi, September 2021.↩︎

3. WFP & UNHCR, Joint Assessment Mission Report: Dzaleka Refugee Camp, Malawi (2014).↩︎

4. Ibid, page 15.↩︎

5. See UNHCR, Global Focus: Malawi, https://reporting.unhcr.org/malawi#toc-populations (accessed 22 November, 2022)↩︎

6. Ibid.↩︎

7. UNHCR Malawi, Strategy 2023-2026, https://reporting.unhcr.org/malawi#:~:text=Resettlement%20remains%20an%20important%20primary,report%20(PGRN)%20are%20submitted (accessed on 17 February, 2022)↩︎

8. Ibid.↩︎

9. Exemption from reciprocity.↩︎

10. Rights to movable and immovable property↩︎

11. Right of association↩︎

12. Right to exercise liberal professions↩︎

13. Right to public education↩︎

14. On labour legislation and social security↩︎

15. https://www.malawilii.org/akn/mw/act/1989/3/eng%402014-12-31 (accessed 23 December, 2022).↩︎

16. https://www.refworld.org/docid/3ae6b4f58.html#:~:text=An%20Act%20to%20regulate%20the,matters%20incidental%20to%20the%20foregoing (accessed 23 December, 2022).↩︎

17. https://www.malawilii.org/akn/mw/act/1966/28/eng%402014-12-31 (accessed 23 December, 2022).↩︎

18. Criminal Appeal No. 74 of 2005 (HC, LL).↩︎

19. Misc. Civil Application No. 19 of 2006 (HC, LR). https://malawilii.org/mw/judgment/high-court-general-division/2008/79 (accessed 23 December, 2022).↩︎

20. Criminal Cause No. 26 of 2005, Senior Resident Magistrate Court, LL. https://iarmj.africa/case-summary/republic-v-abdul-rahman-and-others (accessed 23 December, 2022).↩︎

21. Judicial Review Cause 18 of 2021, [2022] MWHCCiv 2. https://malawilii.org/mw/judgment/high-court-civil-division/2022/2 (accessed 23 December, 2022).↩︎

22. [2005] MWHC 24. https://iarmj.africa/case-summary/state-ex-parte-nsabimana-v-department-poverty-and-disaster-management-affairs (accessed 23 December, 2022).↩︎

23. https://www.immigration.gov.mw/wp-content/uploads/2018/06/strategic-plan.pdf↩︎

24. Emphasis supplied.↩︎

25. OHCHR, Monitoring and Protecting the Human Rights of Returnees and Internally Displaced Persons: Chapter XI, 205.↩︎

26. Golden Matonga, “Malawi refugees in bitter fight against relocation”, Mail & Guardian Newspaper, 10 0ctober, 2022. https://mg.co.za/africa/2022-10-10-malawi-refugees-in-bitter-fight-against-relocation/# (accessed 22 February, 2023)↩︎

27. See SOP, (note 1 above), para. 13.↩︎

28. Cap 25:06 of the Laws of Malawi↩︎

29. Section 4.↩︎

30. Section 5.↩︎

31. Section 6.↩︎

32. Section 7.↩︎

33. Section 19↩︎

34. Cap. 26:03 of the Laws of Malawi.↩︎

35. (Cap. 26:03 of the Laws of Malawi).↩︎

36. See section 2 of the CCPJA.↩︎

37. William Daudi v Republic, Constitutional Case No. 1 of 2018.↩︎

38. Ibid.↩︎

39. UN, ‘Convention Relating to the Status of Refugees – Declarations and Reservations: Malawi’, Treaty Series, Vol. 189, 137.↩︎

40. Ibid.↩︎

41. Ibid.↩︎

42. Ibid.↩︎

43. Ibid.↩︎

44. See various provisions of the Act. E.g. Sections 8(3), 41(1), 54(2), 63(1), 75(2), 84(6), 89(a), 91(c), 94(2), 94(3), 96(2)(d), 100(4), 103(3), 125(5), 127(1)(c), 127(2), 135(1)(b), 137(2), 143(1), 144(13, and 180(2).↩︎

45. 2008-MWSC-3↩︎

46. [2009] MWHC 83↩︎

47. UN Malawi, UN Country Results Annual Report, 2021, page. 20.↩︎

48. See sections 18, 19 and 20 of the Legal Aid Act.↩︎

49. WFP & UNHCR, Joint Assessment Mission Report: Dzaleka Refugee Camp, Malawi (2014), Page 15.↩︎

50. RSD Procedural Standards: Guidance Note to the RSD Assessment Form, Part II, Para.2↩︎

51. SOP, Para. 6↩︎

52. SOP, paras. 74-76.↩︎

53. Section 4(1)(g) of the Immigration Act. It provides that “any prostitute or homosexual, or any person, male or female, who lives or has lived on or knowingly receives or has received any part of the earnings of prostitution or homosexuality, or has procured men or women for immoral purposes” is a prohibited immigrant in Malawi.↩︎

54. US Department of State, 2021 Country Reports on Human Rights Practices: Malawi, https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/malawi (accessed 22 February, 2023)↩︎

55. UNHCR, UNHCR and Partner Practices in Advancing Gender Equality in Sub-Saharan Africa, 2021, page 40. file:///C:/Users/user/Dropbox/UNHCR%20AND%20PARTNER%20PRACTICES%20IN%20ADVANCING%20GENDER%20EQUALITY%20-%20SS%20AFRICA.pdf (accessed 22 February, 2023).↩︎

56. WFP & UNHCR, (Note 3 above).↩︎

57. Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05 4 September 2003.↩︎

58. Ibid, para. 35.↩︎

59. Section 23(1) of the Constitution provides that “All children, regardless of the circumstances of their birth, are entitled to equal treatment before the law, and the best interests and welfare of children shall be a primary consideration in all decisions affecting them.”↩︎

60. Section 24 (1) of the Constitution provides that: “Women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their gender or marital status…”↩︎

61. Cap 25:06 of the Laws of Malawi.o↩︎

62. Cap 33:06 of the Laws of Malawi.↩︎

63. Cap 33:05 of the Laws of Malawi.↩︎

64. Cap. 4:01 of the Laws of Malawi.↩︎

65. See the long title to the Act.↩︎

66. Cap 44:01 of the Laws of Malawi.↩︎

67. UNHCR, Malawi:Banking services in Dzaleka Refugee Camp, 2019↩︎

68. Cap 33:06 of the Laws of Malawi.↩︎

69. WFP & UNHCR Joint Assessment Mission Report: Dzaleka Refugee Camp, Malawi (2014), Page 17↩︎

70. Ibid, Page 9↩︎

71. Ibid, Page 17.↩︎

72. A paper presented at the Refugee Studies Centre Workshop Discussion on RSD and Rights in Southern and East Africa, Kampala, Uganda (2010)↩︎

73. Theto Lungu, Rwandan refugee awarded Chinese scholarship.↩︎

74. Cap. 15:03 of the Laws of Malawi.↩︎

75. Cap. 15:01 of the Laws of Malawi.↩︎

76. Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report Universal Periodic Review: 3rd Cycle, 36th Session.↩︎

77. US Department of State, 2021 Country Reports on Human Rights Practices: Malawi, https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/malawi (accessed 22 February, 2023)↩︎

78. Malawi 2063 - Transforming Our Nation, 35↩︎