Namibia Refugee Law Reader

Jurisdiction
Namibia
Date
16 January 2024
Language
English
Type
Book
Taxonomies

1 Populations of concern: data and statistics

1.1 Is the government registering refugees and asylum seekers? If so, with which registration tool?

Yes, the government is currently registering refugees and asylum seekers.

1.2 The refugee population registered at the end of the year.

As at October 2022 Namibia hosted 4610 refugees according to UNHCR.1 This number does not include asylum seekers and other populations of concern.

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

In 2021 UNHRC reported that Namibia received 829 asylum applications for refugees. In October 2022 UNHRC reported that it hosted 2457 asylum seekers in total. In addition it hosted 4610 refugees and 161 other persons of concern and 4 returnees.2 There are statistics available in respect of age and gender as at October 2022 but they are in respect of a number of southern African countries hosting refugees and asylum seekers (South Africa, Namibia, Eswatini, Botswana, Lesotho, Madagascar, Comoros and Mauritius). To the extent that the age and gender breakdown is helpful even though it is in respect of all these countries, 74% of asylum seekers are male, 26% are female, 1% are elderly and 9% are children.

1.4 Number of naturalized refugees at the end of the year.

No data on naturalised refugees are available.

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

According to the UNHCR Namibia is expected to repatriate 200 former refugees to DRC by the end of 2023.

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

No data relating to the resettlement of refugees from Namibia was made available.

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

No data relating to the cessation of refugee status of refugees in Namibia was made available.

2 Legal framework

2.1 International instruments

Has the State acceded to/ratified the following instruments:

2.1.1 The 1951 UN Convention Relating to the Status of Refugees

Yes, the state has acceded to the 1951 UN Convention on 17 February 1995. Subject to the following reservation in respect of article 26: "The Government of the Republic of Namibia reserves the right to designate a place or places for principal reception and residence for refugees or to restrict their freedom of movement if consideration of national security so required or make it advisable."

2.1.2 The 1967 UN Protocol Relating to the Status of Refugees

Yes, the state has acceded to the 1951 UN Convention on 17 February 1995.

2.1.3 The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa?

Yes, Namibia signed on 11 November 2009.

2.1.4 Has the State made any reservations? If so, list them.

Namibia acceded to the UN Convention Relating to the Status of Refugees on 17 February 1995 subject to the following reservation in respect of article 26: "The Government of the Republic of Namibia reserves the right to designate a place or places for principal reception and residence for refugees or to restrict their freedom of movement if consideration of national security so required or make it advisable."

This is important to note, as Namibia has established a refugee camp called Osire Refugee Settlement, and restricts the movement of asylum seekers in this way.

2.2 National law

2.3 Definition

Provide definitions set out in national legislation relating to the following categories of persons or concepts:

2.3.1 Refugee

Defined in Refugees Act:

2.3.2 Asylum seeker

Not defined in Refugees Act or related regulations.

2.3.3 Child

Defined in Child Care and Protection Act, 2015 as follows:

2.3.4 Unaccompanied and/or separated child

Unaccompanied child is not defined but unaccompanied foreign child is defined as follows in the Child Care and Protection Act, 2015:

2.3.5 Separated child

Not defined in the Child Care and Protection Act, 2015.

2.3.6 Family

The relevant statutes do not define the word “family” but they do contain the following important concepts/words/phrases:

Care and Protection Act, 2015 defines “family member” as:

The Refugees Act provides a definition of member of the family as:

2.3.7 Victim of trafficking

Combatting of Trafficking in Persons Act, 2018 defines victim of trafficking as:

2.3.8 Stateless person

No definition of stateless person or statelessness in Namibian Citizenship Act, 1990 but it does refer to statelessness.

2.3.9 Returnee

No definition contained in the legislation or regulations.

3 Managing borders and regulating the entry of asylum seeker

3.1 Non-refoulement

3.1.1 Do national laws and regulations incorporate the principle of non-refoulment?

To an extent (there are exclusions which will be discussed below). Section 26 which states:

3.1.2 Do national laws and regulations permit exceptions to the principle of non-refoulment? If so, on what grounds? List of such exceptions if applicable?

Yes, there are exceptions to non-refoulement.

There are thus two exceptions to the general principle of non-refoulement:

  1. exclusion from refugee status and
  2. the Minister ordering the removal of a person on the basis that his or her activities endanger or are calculated to endanger state security.

In respect of exclusion in terms of section 4(1) of the Refugees Act:

In respect of section 49(1) of the Immigration Act and state security:

In addition to the two reasons listed in section 26(2), section 24 of the Refugees allows expulsion of refugees on the basis of national security, in the interests of the sovereignty and integrity of Namibia, public order or decency or morality:

In addition to noting section 4 and section 24 of the Refugees Act, it is also important to note that the Refugees Act has a section that states that refugees have the rights and duties contained in the 1951 UN Refugee Convention. It deliberately excludes Article 33 which is the article in the UN Convention which deals with non-refoulement:

The 2021 Report of the Office of the United Nations High Commissioner for Human Rights (which is a compilation of information contained in reports of treaty bodies) stated: “[t]he Committee against Torture recommended that Namibia repeal section 24 (1) of the Namibia Refugees (Recognition and Control) Act of 1999 in order to respect its obligations under article 3 of the Convention against Torture, which establishes an absolute prohibition of refoulement when there is a risk of torture, and that it ensure that individuals at risk of persecution because of their sexual orientation or gender identity were not subject to refoulement and have equal access to asylum without discrimination.”

3.2 Border control

3.2.1 Do 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?

No, the Immigration Act, which deals with non-nationals entering Namibia, does not clearly reflect the differnce between persons seeking asylum / require other forms of protection versus those who want to enter for other reasons.

The relevant sections of the Immigration Act are sections 6, 7, 8, 9, 10 and it does not clearly specify that it is subject to section 26 of the Refugees Act (which deals with non-refoulement and ensuring that no person who is a refugee shall be refused entry). The conclusion that can be / must be drawn is that the Namibia Refugee Act is read with the Immigration Act.

For the purposes of understanding the content of the relevant sections of the Immigration Act, selected portions of section 6 and 7 are copied here.

Section 26 of the Namibian Constitution states the measures that must be taken in the context of a public health emergency. It states:

On the basis of section 26(1) of the Constitution, a state of emergency was declared in "Declaration of State of Emergency: National Disaster (COVID-19) Proclamation 7/2020 (GG 7148). It declared a state of emergency in the whole of Namibia with effect from 17 March 2020. The Proclamation was approved by a resolution passed by the National Assembly in terms of section 26(2)(b) of the Constitution. The Constitution also permits the publication of emergency regulations for the whole of Namibia (section 26(5)(a) of the Constitution).

As a result of the measures above international borders closed. Numerous regulations were issued (over 20) that specified who was able to enter Namibia at the stage that international borders were closed. The first set of regulations does not appear to allow the entry of persons seeking asylum (see section 7 entitled “Prohibition relating to entry to Namibia”).10 According to UNHCR’s Southern Africa Covid-19 Report (March to September 2020) “people of concern were were included in the national health responses to COVID-19 in SAMCO countries, with additional support provided by UNHCR and partners for camp-based and centre-based populations in Botswana, Eswatini, Lesotho and Namibia. UNHCR supplemented government health response by establishing isolation and quarantine centres, supporting health centres with equipment and supplies, and conducting training for health workers on COVID-19 prevention, identification and treatment.”11 In respect of COVID-19 related hygiene UNHCR stated " UNHCR also distributed soap to 18,752 individuals along with 12,716 face masks and 1,995 sanitizers for urban and camp-based refugees in Botswana, Eswatini, Lesotho, Namibia and South Africa to help prevent the spread of COVID-19“.12 In respect of assistance with food and household items UNHCR stated”The camp-based refugee and asylum-seeker populations in Botswana, Eswatini, Lesotho and Namibia continued to received food and household items in accordance with regular monthly schedules, despite some pipeline breaks for certain items in Namibia in the first couple of months due to restrictions on cross-border movements. An additional 1,919 families in urban areas also received food and essential household and hygiene items to support them through the COVID-19 lockdowns and restrictions.“13 In respect of education UNHCR stated”UNHCR also supported the return to school for refugee children in Botswana and Namibia by installing handwashing facilities and taking other measures to ensure classrooms were complaint with social distancing and hygiene guidelines."14

3.3 Non-penalization

3.3.1 Do national laws and regulations provide for non-penalization for irregular entry of asylum seekers? Or on the contrary, do they provide for penalization for irregular entry of asylum seekers?

Yes, the Refugees Act provides for non-penalisation for irregular entry of asylum seekers. Section 15 of the Namibian Refugee Act states:

3.3.2 If so, do national laws and/or regulations indicate a period during which the asylum seeker needs to report to the authorities? If yes, what is the precise timeframe?

Yes, the Namibian Refugees Act requires a person seeking asylum to apply for asylum within 30 days:

3.3.3 Do national laws and/or regulations require any other conditions for non-penalization? If so, which one?

No, they do not.

4 Reception and treatment of asylum seekers

4.1 Reception facilities

4.1.1 Do national laws and/or regulations entitle asylum-seekers to reception facilities? Is the access limited, if so, on which basis? Is the access limited in time, or geographically?

Yes, the national laws entitled asylum seekers to reception facilities:

Section 19 of the Namibia Refugees Act states:

In accordance with the power to designate a settlement area the Minister established Osire Refugee Settlement as a refugee settlement and also a reception area.15 The other reception area that has been established is in Katima Mulilo. In reality, once an asylum seeker arrives in Namibia through a port of entry, they are transported to Katima Mulilo for processing. There, they are registered and issued with an arrival and application form. Afterwards, the asylum seeker is transported to Osire Refugee Settlement for further processing of the refugee status determination process, including the interview with the asylum seeker. In terms of whether access is limited in some way – it is limited geographically, as it is in the north-east of the country. It means that on arrival all asylum seekers have to travel very far north (unless they arrived through a northern border) before they are taken to Osire Refugee Settlement. If an asylum seeker arrives through South Africa, they will have to travel a long way – past the Osire Refugee Settlement where they will eventually settle and be interviewed – all the way in the north for registration and processing.16

4.1.2 Do 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?

The national laws do not provide for gender and age-sensitivity in reception arrangements.

4.2 Detention and alternative(s) to detention

4.2.1 Do national laws and/or regulations provide for the detention of asylum seekers? How is the detention defined?

To the extent that encampment is seen as a form of detention, Namibia encamps its refugee population. The refugee settlement areas are established in terms of section 19 of the Namibia Refugees Act. Section 20(1) of the Namibia Refugees Act states that the Minister may require a refugee, asylum seeker or other protected person to reside in a reception area or settlement area. In addition to that requirement, section 21 makes a failure to comply with section 20 an offence for which a refugee, asylum seeker or other protected person may be liable on conviction to imprisonment not exceeding 90 days.

Other forms of detention which are explicitly mentioned in the Refugees Act includes:

Detention for the purpose of committing an offence under the Namibia Refugees Act. Certain offences are created in terms of the Refugees Act, which can be punishable by detention. See for example section 21(a) and (b) of the Refugees Act:

Detention as a result of being a risk to safety and security: sections 24 and 25 read with regulation 9 authorise the detention of a refugee or asylum seeker on the grounds of national security. The sections and regulation are copied here:

Detention or expulsion of recognized refugees and protected persons

9. (1) A notice of intention to detain or expel a recognized refugee or protected person, as contemplated in section 24(3)(b) of the Act, shall be substantially in the form as set out in Annexure E.

(2) An order -

(a) for the detention of a recognized refugee or protected person, as contemplated in section 24(7)(a) of the Act, shall be substantially in the form as set out in the Annexure F;

(b) for the expulsion of a recognized refugee or protected person, as contemplated in the said section 24(7)(a), shall be substantially in the form as set out in the Annexure G.

(3) Notwithstanding the provisions of regulation 15, an order of detention or expulsion referred to in sub regulation (2) shall be served personally on the recognized refugee or protected person concerned.

Other than the above, there is no authority for detaining asylum seekers or refugees in law. If a person is detained under the Immigration Act for having an irregular status, and they state that they wish to apply for asylum, they must be allowed to do so.

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

Section 15(5) of the Constitution states that

The Refugees Act does not explicitly authorise the detention of children for migration related reasons. At the same time it does not exclude children from being detained for migration related reasons.

The Child Care and Protection Act does authorise the use of detention. It does not define the term “detention” but does define “child detention centre”.

It states that it is “a facility referred to in section 69, and a reference in any other law to a”place of detention" or a “reform school” for juvenile offenders is deemed to be a reference to a child detention centre".

Section 69 states:

Section 231 states:

Section 233 of the Child Care and Protection Act deals with unaccompanied foreign children. Subsection 5 states:

Section 235 of the Child Care and Protection Act concerns the unlawful removal or detention of a child. It states:

The important conditions here are that child detention can be effected in circumstances in which the person has (1) lawful authority to do so (so for example they are authorised by a statute or court order) or reasonable grounds. The latter means that if they do not have a court order or they are not authorised by a statute they can still remove and detain a child if there are reasonable grounds to do so. Children who do not appear to benefit from this section are orphaned and abandoned children as well as unaccompanied minors (because the detention is only prohibited where it will result in the child being kept from the control of a person who has lawful control of them). The section also does not apply to situations in which children are already or will be detained with their parents.

4.2.3 Are the detention conditions set out in the laws and regulations?

Yes, the Child Care and Protection Act stipulates numerous conditions for detention. Section 69(3) states that a child detention centre:

Section 72, 73, 74 and 76 prescribe further conditions such as management boards for children’s homes and child detention centres, the application for registration of child detention centres, the registration of child detention centres and the requirement that child detention centres are to provide the Minister responsible for child care and protection with an annual report containing certain information such as number, age and sex of the children accommodated at the centre.

4.2.4 Are asylum-seekers accommodated together with persons accused or convicted of criminal offenses?

There have been reports of asylum seekers being detained with persons accused or convicted of criminal offences.

4.3 Assistance

Limited medical, social and humanitarian assistance is being provided to refugees in the Osire Refugee Camp. There is a Legal Aid in Namibia called The Directorate: Legal Aid. Their mandate is to provide free legal assistance to indigent persons but their accessibility to newly arrived refugees and asylum seekers (who are also taken to a closed facility) is questionable.

4.3.2 Is assistance free of charge?

Yes

4.4 Asylum seekers rights

4.4.1 Do national laws and regulations provide for respect the family unity?

Yes, they do. The definitions section defines family member as:

They are also referred to as “protected persons” (as opposed to being referred to or defined as refugees in their own right). In respect of persons who have applied for refugee status (but not yet been recognised as such) the following applies:

In respect of persons who have already been recognised as refugees, the following applies:

4.4.2 What rights do national laws and regulations provide regarding asylum-seekers in the field of health care, work, education, and freedom of movement?

In respect of education for recognised refugees

Section 18 must be read with Schedule I to the Namibia Refugee Act:

In respect of children who are not recognised refugees, the Child Care and Protection Act contains an important provision:

The above speaks of the right to education for recognised refugees. The Constitution and the Basic Education Act 3 of 2020 must be referred to in respect of asylum seekers. The Constitution states:

The Basic Education Act 3 of 2020 contains similar provisions in relation to the right of everyone to receive an education:

In reality, education is provided for in the camp setting by the government.17 In respect of work / employment in respect of recognised refugees, work is also provided for in the Refugees Act in terms of section 18 and schedule I. Section 18 has already been copied here.

It is difficult for refugees to obtain work as they are accorded the most favourable treatment of nationals of a foreign country. According to staff of the Legal Assistance Centre, in practice refugees are required to obtain work permits.

In respect of children and healthcare, the Child Care and Protection Act contains an important provision:

In respect of freedom of movement:

As mentioned earlier, Namibia entered a reservation to the 1951 UN Convention that allows for the designation of a place for reception and residence as well as to restrict the residents freedom of movement. The Constitution similarly contains restrictions of free movement which appear to justify the use of encampment and the inability of asylum seekers to move freely in Namibia. Thus, in accordance with this reservation, the limitations in the Constitution and in terms of section 19 of the Refugees Act (which empowers the Minister to establish a reception area and a refugee settlement) the Minister established Osire Refugee Camp.18

The Constitution states:

Section 19 of the Refugees Act states:

Section 20 of the Refugees Act further empowers the Minister to restrict the free movement of an individual:

4.4.3 Do national laws and regulations provide for right to access to UNHCR?

They do not. Further, in practice, UNHCR in Namibia has taken a position that they deal with recognised refugees and not asylum seekers which means that asylum seekers will not have access to UNHCR staff or their offices.19

4.5 Child best interest

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

The Child Care and Protection Act requires that certain factors must be taken into account (where relevant). See section 3(2) specifically:

4.5.2 Are there procedures to prevent children's separation from their families and facilitate family tracing and reunification for those who have become separated? If so, describe them.

Yes, there are procedures to prevent separation to a certain extent (such as during detention) in the Child Care and Protection Act. They are listed above and repeated here again:

The important conditions here are that a child cannot be removed from their caregivers or detain a child away from their caregivers unless there is 1) lawful authority to do so (so for example they are authorised by a statute or court order) or reasonable grounds.

4.5.3 Is birth registration and documentation provided for all children?

The Namibian Constitution provides for birth registration as a fundamental right:

Birth registration of children born in Namibia to refugees and asylum seekers: The Births Marriages and Deaths Registration Act does not differentiate between the registration of birth of non-nationals and nationals. It simply states:

In relation to other forms of documentation:

In respect of children of persons who have applied for refugee status or children of recognised refugees are allowed documentation under the provisions of the Refugees Act:

Regulation 4 of Refugees Act Regulations states that a temporary identification document will be issued to persons and the family of persons who have applied for refugee status.

Temporary identification documents

4(1) The Commissioner shall issue to each person who has applied in terms of section 13(1) of the Act for refugee status, and to every member of the family of such person, a temporary identification substantially in the form as set out in the Annexure B.

Once refugee status is granted regulation 5 of the Refugees Act Regulations applies:

Issue of identity cards

    1. The Commissioner shall, on application in the form set out in Annexure AB,

issue to -

  1. each person who has been granted refugee status in terms of section 13(4)(a) of the Act; and

  2. every member of the family of such recognised refugee who has entered Namibia, an identity card substantially in the form as set out in Annexure C.

  1. A person who has been issued with an identity card in terms of subregulation (1) shall, at all times carry on him or her the identity card or, have the identity card readily available in his or her immediate vicinity.

5 Refugee Determination Procedures

5.1 Procedural guarantees

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

Yes, the national laws designate an expert authority for examining refugee status and making a decision in the first instance – specifically, they appoint a Commissioner and a Committee. The Commissioner is the ultimate decision-maker and is assisted with representations from the Committee.

It is difficult to say whether the Commissioner is of an administrative or quasi-judicial nature.

5.1.2 Do 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?

Unfortunately, very little guidance appears to be offered to asylum seekers in the law. The Refugee Regulations are silent on ensuring that asylum seekers are guided in a language and manner they understand. There is one provision in the Refugees Act that ensures that asylum seekers that cannot write are assisted to fill out the application form, but nothing in respect of ensuring that the procedure of applying for asylum is explained to asylum seekers in their language or a manner that that they understand.

The provision on assisting them to write the form is in section 13:

There is nothing legislated either in the Act or the regulations which would have the effect of ensuring that interpretation and legal services are afforded to asylum seekers when submitting their claim to authorities. Article 95 of the Namibian Constitution, regarding “Promotion of the Welfare of the People” states that “[t]he State shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at the following:… (h) a legal system seeking to promote justice on the basis of equal opportunity by providing free legal aid in defined cases with due regard to the resources of the State”. Technically speaking, this could provide asylum seekers with an opportunity to be legally represented.

5.1.4 Do 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?

No, it does not at all.

There is a Legal Aid in Namibia called The Directorate: Legal Aid. Their mandate is to provide free legal assistance to indigent persons but their accessibility to newly arrived refugees and asylum seekers (who are also taken to a closed facility) is questionable.

5.2 Confidentiality

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

Namibia has not enacted comprehensive protection of personal information / data privacy legislation, but there is a general right to privacy as contained in section 13 of the Constitution:

There is nothing specific in the Refugees Act or regulations relating to privacy or confidentiality.

There are no data protection laws in Namibia, so no, there is no legislation or statute in place that requires that the disclosure of personal information should be subject to obtaining the consent of the person. There is also no case law on the protection of data and personal information according to a May 2022 article on Data Guidance (see Namibia – Data Protection Overview).

No, as per what was written above there is nothing in the Refugees Act or its regulations, nor any data protection legislation that would create that obligation indirectly.

5.3 Registration

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

Yes, they are all registered and also all granted permits if they are in the country or arrive in the country later. Section 13(1) of the Refugees Act must be read with regulation 4 of the Regulations:

Temporary identification documents

    1. The Commissioner shall issue to each person who has applied in terms of section 13(1) of the Act for refugee status, and to every member of the family of such person, a temporary identification document substantially in the form as set out in the Annexure B.
  1. Every person to whom a temporary identification document has been issued in terms of subregulation (1), shall at all times carry on his or her person or have readily available in his or her immediate vicinity such identification document.

In respect of recognised refugees, all members of the family are registered too. Section 17 of the Refugees Act read with regulation 5 of the Regulations:

Issue of identity cards

    1. The Commissioner shall, on application in the form set out in Annexure AB,

issue to -

  1. each person who has been granted refugee status in terms of section 13(4)(a) of the Act; and

  2. every member of the family of such recognised refugee who has entered Namibia, an identity card substantially in the form as set out in Annexure C."

The Regulations provide the relevant forms to be used to apply for asylum and it contains space for the names of all the applicants family members.

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

No, national laws do not appear to contain any restrictions on persons in detention applying for asylum. Section 13 does not state where the application for asylum must be made (i.e. it does not state that the application for asylum must be made at the reception facility or cannot be made in detention). Section 2 of the Regulations only states that an application in terms of section 13 shall be made to an authorised officer on a form similar to the one provided in the regulations and needs to contain all the required information. Authorised officers include immigration officers, a member of UNHCR or member of the police force (see section 29(1) of the Refugees Act). Thus, in theory, a person ought to be able to make an application for asylum from detention where there are immigration officers, as well as at the border where there are immigration officers. An interview with a staff member of Legal Assistance Centre in Namibia confirms that a person can make an application from detention should they wish.

5.3.3 Do 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?

Nothing in the law says that claims submitted at a border must follow a particular different procedure – the Refugees Act states that an asylum seeker can make their application for asylum to an authorised officer which includes an immigration officer. An interview with a staff member of Legal Assistance Centre confirms that a person can, technically speaking, make an application for asylum at the border. However, in practice, there are no RSD officials at the border and so the person will have to be transported to the refugee reception facility in Katima Mulilo.

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

The Refugee Act does not specify this detail. It simply states that an asylum seeker can make an application for asylum to an authorised officer. In practice, according to a staff member of the Legal Assistance Centre, a person seeking asylum must be referred to the refugee reception area in Kutima Mulilo for registration and processing of their asylum claim.

5.3.5 Are asylum-seekers and all family members accompanying them 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)?

Yes, they are:

Temporary identification documents

    1. The Commissioner shall issue to each person who has applied in terms of section 13(1) of the Act for refugee status, and to every member of the family of such person, a temporary identification document substantially in the form as set out in the Annexure B.
  1. Every person to whom a temporary identification document has been issued in terms of subregulation (1), shall at all times carry on his or her person or have readily available in his or her immediate vicinity such identification document.

5.3.6 Can 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?

The Refugees Act is not clear on this. It simply states that refugees cannot be denied entry (section 26) and that asylum seekers can make an application for asylum to an authorised officer (section 13). In reality, claims are not processed at the border. The person is allowed entry into the country for the purpose of making an application for asylum and they are transported to the refugee reception facility in Katima Mulilo.

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

The Refugees Act and its Regulations do not contain conditions that states that asylum claims cannot be lodged if the person does not have an identity or travel document. The form in the Regulations does ask how the person entered Namibia and what documents they have, but does not ask the person to produce them or make it a condition to apply for asylum.

5.3.8 Where female asylum-seekers are accompanied by adult male relatives, are they 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?

Nothing in the Act or Regulations specifies that. In fact legislation automatically grants derivative status and permits to family members rather than specify they have an opportunity to become refugees in their own right.

In terms of regulation 4 of the Refugee Regulations the family members have a right to be issued with a temporary identity document:

Temporary identification documents

    1. The Commissioner shall issue to each person who has applied in terms of section 13(1) of the Act for refugee status, and to every member of the family of such person, a temporary identification document substantially in the form as set out in the Annexure B.

This is good for guaranteeing family unity, but not good for the reason that it does not make provision for a separate asylum claim to be determined and granted on their own merits. A family member can make their own application in terms of section 13(1) of the Refugees Act, but if asylum seekers are not advised that they can make their own claim, then it may not end up happening.

What was interesting to note from a presentation on “derivative status” sent to me by the Legal Assistance Centre is that authorities are sceptical of persons who apply for refugee status in their own right, and if that is rejected then go on to apply for derivative status as it gives authorities the impression of trying to circumvent the refugee status determination procedure. As a result, in reality asylum seekers may apply for derivative status instead of attempting to apply for refugee status in their own rights. It also gives the impression that the persons asylum claim is not viewed holistically.

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?

There are no automatic barriers present in the legislation.

5.4.2 What time limit is imposed for the submission of an asylum claim to the authorities?

The asylum claim must be made within 30 days of entry:

5.4.3 Do 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?

The Refugees Act does not provide for the first country of asylum concept.

5.4.4 Do 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)?

The national laws and regulations do not make provision for a safe third country.

5.4.5 If so, do 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?

N/A

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

They do not define safe third country and do not contain provision for a safe third country. Further, Namibia does not have agreements in respect of a safe third country.

5.5 Adjudicating claims

5.5.1 Do 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 national laws and regulations do not contain any information on credibility assessments.

5.5.2 Do 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? If so, which indicator(s)?

The national laws and regulations do not contain any information on credibility assessments.

5.5.3 What is the standard of proof set in legislation or in practice to assess credibility?

The national laws and regulations do not contain any information on credibility assessments.

5.5.4 Do national laws and regulations have provisions on the decision-making process?

Some administrative procedures relating to decision-making are outlined in the national laws. The application for asylum must be made to an authorised person (which can included an immigration officer). If the authorised person was not an immigration officer, then the authorised person must make sure that the application is transmitted to an immigration officer. Within 7 days of receipt it must be referred to the Committee, together with all the documents (including written representations) that the applicant wishes to submit in support of their application. The Committee then has 30 days to make recommendations to the Commissioner as to granting or not of refugee status. In the 30 days (the period can be extended) the Committee is empowered to make an inquiry or conduct an investigation for the purpose of making a recommendation to the Commissioner. The Commissioner must then make a decision and notify the applicant (and in the case of a refusal to grant refugee status, the Commissioner must provide written reasons as to the decision).

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

The legislation does not appear to make provision for the family members of asylum applicants to be assessed for asylum claims on their own merits:

In terms of the Refugees Act, it appears that a person makes an application for asylum in terms of section 13. Thereafter, they and their dependants are given temporary residence in Namibia. At the same time, nothing in the Refugees Act prevents a family member from applying for asylum in their own name. However, as mentioned above, it is doubtful that they would think to make their own application for asylum unless the Refugees Act specified they ought to be given the option and someone explained that right to them and the reasons why it would be beneficial.

5.6 Interview and decision making at first instance

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

The national laws do not appear to specifically make provision for an interview. It only makes provision for an application to be made to an immigration officer who must ensure that when the application is transmitted to Committee it is accompanied by “such other documents (including written representations) as the applicant desires to submit in support of the application”:

Regulation 2 states:

Application for refugee status

  1. An application for refugee status contemplated in section 13(1) of the Act shall be made to an authorised officer on a form similar to the form contained in Annexure A, and shall contain all the information.

5.6.2 If so, do 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?

The national laws do not appear to specifically make provision for an interview before a decision is made by the authority responsible for adjudicating asylum claims at first instance. It only makes provision for an application to be made to an immigration officer who must ensure that when the application is transmitted to Committee it is accompanied by “such other documents (including written representations) as the applicant desires to submit in support of the application”:

Regulation 2 states:

Application for refugee status

2. An application for refugee status contemplated in section 13(1) of the Act shall be made to an authorised officer on a form similar to the form contained in Annexure A, and shall contain all the information.

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

Decision makers have access to country of origin information.

5.6.4 Do national laws and regulations provide that asylum-seekers are 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?

The national laws do not provide for this.

5.7 Accelerated procedures

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

The national laws do not have or make reference to any accelerated procedure. There is also none found for vulnerable persons like children, persons with disabilities, pregnant persons etc.

5.7.2 Describe the features of these procedures in comparison with the standard procedure.

N/A.

5.8 Appeal and remedy

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

Yes, the national laws provide for an appeal against the decision in the first instance.

5.8.2 Do 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?

Yes, the national laws do designate an authority for assessing appeals. It appears to be quasi-judicial in nature. Two things that give that impression is that it is empowered to consider “any other information at the disposal of the Appeal Board” and it can conduct a hearing.

The legislation does not make it clear whether the Appeal Board is independent. There are no appeal board regulations to clarify that fact.

5.8.3 Are the reasons for not granting refugee status, whether in fact or law, stated in the decision? Is such information shared with the asylum-seeker in writing as soon as possible to allow him/her to lodge an informed appeal? Is 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?

Yes, the Commissioner (first instance decision maker) has to provide written reasons for a decision not to grant refugee status and has to share it in writing with the asylum seeker (but no time frames are stipulated):

However, no provision is made in law in the first instance for the asylum seeker to be informed verbally in a language they understand that they understand the reasons for the decision, their right to appeal and the applicable timeframes for the appeal. However, the law does provide a right to appeal as well as timeframes for the appeal to be lodged:

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

The appeal permits the following considerations, which can include fact and law based on reliable, accurate and up-to-date information:

Whilst it permits the consideration of fact and law, it does not demand it.

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

A hearing is provided for. The Appeal Board must summon the appellant to appear before it to be “examined or to produce any document in his or her possession or custody or under his or her control”. The person has a right to be personally present:

5.8.6 Does the appeal have 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?

It does have a suspensive effect:

Section 14(1)(b) does not clearly state “until a decision has been taken on the appeal” but logic dictates that residence would not be extended only to the point of noting the appeal, but also until its conclusion.

5.9 Asylum seekers with specific needs

5.9.1 Children

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

There are no special procedures set out for children applying for asylum in the Refugees Act. The Child Care and Protection Act contains some measures in respect of unaccompanied children who are also asylum seekers. It states the following:

Are they processed on a priority basis in the regular procedure with reduced waiting periods at each stage of the asylum procedure and is every effort made to render a decision promptly and fairly, as they will often have special protection and assistance needs?

No direct provision is made in the Refugees Act for the applications of UAMs to be treated as a priority. However, section 5(4) of the Child Care and Protection Act states:

This means that UAMs applications for asylum must be treated urgently and that even if a period of 30 days is provided to the Committee to refer a matter to the Commissioner, delays in referring the matter should be avoided."

No provision is made in the Refugees Act or the Child Care and Protection Act for legal assistance in the asylum application of a child. However, any indigent person is able to approach the Legal Aid Board. Realistically, whether a child can approach Legal Aid for legal services is unlikely.

If a child's age is in doubt, is an age assessment conducted? If so, by whom and what is the procedure?

The procedure is done by the children’s court in terms of the Child Care and Protection Act. This was confirmed in an interview with a staff member of the Legal Assistance Centre.

An example of when the children’s court may need to do this is when a child is abandoned or when a child lacks identification. See section 232:

Section 187 of the Child Care and Protection Act states that regulations can be made to create age determination procedures.

The Minister has not made regulations to this effect.

5.9.2 Person with disabilities

Are there special measures for the treatment of their claims? Are they treated as a priority? Are they allowed to be accompanied by a representative or guardian?

There is nothing in the Act or regulations that states that persons with disabilities are given treatment in the asylum seeking process in accordance with their circumstances.

5.9.10 Women

Where women asylum-seekers are accompanied by male relatives, are they 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?

Nothing in the legislation makes provision for a woman to be told that they have a valid claim in their own right and that they have a right to make an independent asylum application at any stage.

In fact legislation automatically grants derivative status and permits to family members, such as women in the case where the man is the principal applicant, rather than specify they have an opportunity to become refugees in their own right.

In terms of regulation 4 of the Refugee Regulations the family members have a right to be issued with a temporary identity document:

Temporary identification documents

    1. The Commissioner shall issue to each person who has applied in terms of section 13(1) of the Act for refugee status, and to every member of the family of such person, a temporary identification document substantially in the form as set out in the Annexure B.

This is good for guaranteeing family unity, but not good for the reason that it does not make provision for a separate asylum claim to be determined and granted on the merits of the woman’s claim. A woman can make their own application in terms of section 13(1) of the Refugees Act, but if they are not advised that and there is no obligation for them to be so advised, then it may not end up happening.

5.9.11 LGBTIQ

There is nothing in the regulatory framework that requires claims lodged by LGBTIQ individuals to be treated as a priority.

5.10 Recognition of refugee status

5.10.1 What is the average processing time, from the asylum claim registration to the decision on refugee status?

While the Refugees Act prescribes a time limit of 30 days within which applications have to be adjudicated, the reality is that asylum seekers are experiencing long delays in getting a decision from the authorities.

5.10.2 What type of residence does the legislation provide to refugees?

Settlement areas:

In practice, refugees and asylum seekers reside at Osire Refugee Settlement. There is nothing specific in the legislation regarding the type of accommodation / residence that must be provided (e.g. nothing stating what type of shelter must be provided).

5.10.3 For how long is the refugee status granted?

There are no time limits contained in the Act or regulations. The form that contains the identity document does not contain a time limit either. The indefinite nature of the length of the refugee permit was confirmed by a staff member of the Legal Assistance Centre.

5.10.4 Is provision made for the issuance of individual identity documents certifying their status? What is the duration of such documents?

Yes, provision is made for the issuance of an identity document in terms of section 16 of the Refugees Act read with regulation 5 of the Refugees Act Regulations:

Issue of identity cards

    1. The Commissioner shall, on application in the form set out in Annexure AB,

issue to -

  1. each person who has been granted refugee status in terms of section 13(4)(a) of the Act; and

  2. every member of the family of such recognised refugee who has entered Namibia, an identity card substantially in the form as set out in Annexure C.

5.10.5 Are ID cards also issued to family members recognized as refugees based on derivative status?

Yes, ID cards are also issued to the family members of the refugee based on derivative status in terms of section 17 of the Refugees Act and regulation 5 of the Refugees Act Regulations:

Issue of identity cards

    1. The Commissioner shall, on application in the form set out in Annexure AB,

issue to -

  1. each person who has been granted refugee status in terms of section 13(4)(a) of the Act; and

  2. every member of the family of such recognised refugee who has entered Namibia, an identity card substantially in the form as set out in Annexure C.

No, the refugee status is not affected by changes in family status in terms of section 17 of the Refugees Act (or alternatively there are changes in status but the family member is allowed to remain in the country regardless):

Further, on the change of status, the family member who was a protected person, may apply for refugee status in their own right if they wish:

5.11 Recognition of alternative status

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

In the sense that complementary protection is something that is given to persons who do not qualify for a refugee permit but still require protection, the Refugees Act does not make provision for complementary protection.

The Immigration Act allows the issuance of a visa to persons for a period of 2 months, but there is no provision under the Immigration Act for it to be renewed, so it cannot really be considered a mechanism through which to grant complementary protection:

5.12 Exclusion, cancellation, revocation, and cessation

5.21.1 Exclusion

Do national laws and regulations provide for the exclusion from refugee status? If so, on which grounds?

Yes, the Act provides for exclusion from refugee status. The grounds for exclusion include having other nationalities in countries that the person can avail themselves to, or has, before their admission to Namibia, committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime, or acts contrary to the purpose and principles of the United Nations Organisation or the Organisation for African Unity. See section 4 of the Refugees Act:

If the ‘serious non-political crime’ is a ground for exclusion, does domestic legislation contain a definition of same? If so, which one?

Yes, “serious non-political crime” is a ground for exclusion and a definition is contained in the Act. As mentioned above, it is defined in section 4 of the Refugees Act:

Is exclusion considered in the context of a determination of the admissibility of a claim?

Yes

What is the standard of proof for the exclusion?

There is no prescribed standard of proof listed in the Act or regulations.

5.12.2 Cancellation

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

Yes, cancellation appears to be permitted in terms of section 23(1)(a), specifically in respect of persons who “should not have been granted refugee status”:

Is a person whose refugee status is cancelled given access to a procedure for determining whether he or she qualifies for refugee status at present? If so, does it happen within the cancellation procedure or in separate proceedings?

There is no procedure for determining whether a person whose refugee status is cancelled qualifies for refugee status at the time of the reconsideration. However, the person must be notified of a decision to reconsider their status and called upon to make written or oral representations relating to the reconsideration. At this stage they would be able to make submissions regarding the fact that they are a refugee at the time of the reconsideration of their status. Of course, this entitlement is not the same as there being an obligation on the Commissioner to determine whether the person qualifies for refugee status at the time of reconsideration and many persons who would qualify for refugee status if there was such an obligation will not know to make submissions to that effect.

The procedure through which submissions can be made regarding the reconsideration are contained here:

Is the person provided with the assistance of an interpreter, if required?

Once the Commissioner has reason to believe that a person falls into any of the grounds for withdrawal, including that they should not have been granted refugee status, the Committee who the matter is referred to has an obligation to notify that person that their status is under reconsideration and call upon the person to make oral or written submissions (section 23(2)(b) of the Refugees Act).

In the event that the person choses to make oral representations, they have the right to be present at the inquiry before the Committee (section 23(3)(a) of the Refugees Act) and to have an interpreter assigned to him or her by the Committee, if the inquiry is conducted in a language that such person does not understand (section 23(3)(b) of the Refugees Act):

Yes, section 23(3)(a) of the Refugees Act permits the person to have a legal practitioner:

Is the person provided a right to appeal or review such a decision by a different person or entity?

The appeal referred to above would be noted in terms of section 27 which permits a right of appeal to the Appeal Board against any decision taken by the Commissioner under the Act:

Does refugee status remain in place until a decision to cancel it has become final?

Yes, refugee status remains in place until a decision to cancel it has become final. The Refugees Act goes one step further by stating that refugee status remains in place after the Commissioner has made a final decision to cancel and until an appeal to the Appeal Board against the decision to cancel has been dismissed (and the person has been notified in writing (section 23(6)(b) of the Refugees Act)).

5.12.3 Revocation

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

Yes, national laws provide for revocation under section 23(1)(c) of the Refugees Act:

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

The national laws require that the person whose refugee status is under reconsideration is reasons for the revocation (section 23(5) of the Refugees Act).

Is the affected person provided with an opportunity to challenge the decision? If so, does it happen before the authority responsible for determining refugee status? Does the person have the opportunity to appeal with suspensive effect to a higher authority?

The national laws provide an opportunity to challenge the decision in that the person whose refugee status is being reconsidered may elect to make oral or written representations (section 23(2)(b) of the Refugees Act) before the Committee (who makes representations to the Commissioner who makes the ultimate decision). If they elect to make oral representations then they have the right to be personally present at the inquiry into the reconsideration (section 24(3)(a) of the Refugees Act).

If the Commissioner decides to revoke refugee status, the person whose status is under reconsideration does have an opportunity to appeal to the Appeal Board with suspensive effect (i.e. they cease to be a refugee at the date on which they receive notification of the decision of the Appeal Board):

Is the person provided with the assistance of an interpreter, if required?

Yes, the person is allowed an interpreter both at the level of the Committee (“first instance” so to speak) and at the appeal stage:

First instance / Committee level:

Appeal level:

Yes, persons whose refugee status is being reconsidered are allowed legal counsel if they elect to make oral representations to the Committee that is deciding whether to revoke such status:

Does refugee status remain in place until a decision to revoke it has become final?

Yes, refugee status remains in place until a decision to revoke it has become final. The Refugees Act goes one step further to state that refugee status remains in place after the Commissioner has made a final decision and until an appeal to the Appeal Board against the decision has been dismissed and the person has been notified in writing of the decision (section 23(6)(b) of the Refugees Act).

5.12.4 Cessation

Do national laws and regulations provide for cessation? If so, on which grounds?

Yes, cessation is provided for in the law (section 23(1)(b) of the Refugees Act:

Do national laws and regulations provide 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?

No, the laws do not explicitly provide 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 / former habitual residence. However, once the Commissioner wishes to invoke the cessation of refugee status in respect of a person, the refugee has the opportunity to make submissions. At that stage they might make submissions that they refuse to return to their country of nationality for reasons arising out of previous persecution. The reason submissions of this nature could be made is because section 23(3)(a) of the Refugees Act, which provides a right to make submissions to the Committee, does not specify the nature of those submissions:

While this definitely does not offer the same as providing an exemption, it is worth mentioning.

Do 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? 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?

The national laws require that the person who refugee status is under reconsideration is to be notified of the reasons for the cessation (section 23(5) of the Refugees Act):

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

The national laws do not make consulting with UNHCR a requirement when considering the use of the cessation clause. However, once the Commissioner wishes to invoke the cessation clause, the matter must be referred to the Committee (section 23(1) of the Refugees Act). In terms of section 7(2)(f) of the Refugees Act, which deals with the composition of the Committee, a UNHCR representative must be appointed to the Committee, though they hold observer status, cannot vote in the decisions and act only in their advisory capacity. Either which way, the UNHCR does become alerted to matters in which the cessation clause is being invoked. However, again, this does not afford the refugee the same level of protection as requiring that the authorities wishing to invoke the cessation clause must consult with UNHCR.

5.13 Persons found not to be in need of international protection

5.13.1 Are persons found not to be in need of international protection forced to return? If so, is the concerned person detained before removal?

Persons found not to be in need of international protection ceases to be a refugee with effect from seven days after the Commissioner notified the person of the withdrawal of their refugee status (or if the person made an appeal, the date on which the person was notified of the dismissal of the appeal). There are no provisions that directly state that they are forced to return but there are also no provisions allowing alternative status under the Refugees Act for refugees who fall under the cessation clause. They would need to regularise their stay under immigration laws and if unable to do so, would be forced to return to their country of origin.

They are not called removal orders, but the decision to withdraw status on account of ceasing to be a refugee is communicated to the refugee in writing in terms of section 23 of the Refugees Act:

This means that the decision ought to, in terms of section 26(5) of the Refugees Act contain the legal and factual grounds for which the persons refugee status has ceased. It is not clear from the wording of the Refugees Act whether the available remedies are set out in the letter informing the person that their refugee status has ceased. However, the Refugees Act does make provision for a remedy (an appeal against the decision in terms of section 27 of the Refugees Act).

5.13.3 Has the State signed a readmission agreement? If so, with which country(ies)?

There is no information available relating to readmission agreements entered into by the government of Namibia and other states.

6 Rights of refugees

6.1 Principle of non-discrimination

6.1.1 Is the principle of non-discrimination set out in law?

Yes, the Constitution makes provision for equality and non-discrimination:

There is legislation aimed at combatting racism, racial discrimination, xenophobia (to an extent) and related intolerance. It is entitled “Racial Discrimination Prohibition Act 26 of 1991. The definition of”racial group" in the legislation states as follows:

6.2 Obligations and rights of refugees

6.2.1 Are refugees issued with a travel document if required? What is format of such document, and what is its duration? What are the fees charged, if any?

Yes, refugees are given travel documents if required (so not automatically).

The Act makes further provision for the Minister to establish regulations for the provision of issues of identification and UN Travel Documents. Regulation 4(1) makes provision for the issuing of a of a temporary identity document to each person who has applied for refugee status. Once formal status has been conferred upon the applicant he or she will be issued with an identity card. Once recognized as a refugee or protected person that individual acquires the right to apply to the Commissioner for the issuing of a UN Travel Document that entitled the holder to travel outside Namibia.

The schedule to the Refugees Act includes a provision on travel documents from the UN Convention:

The regulations also contain a provision on travel documents:

Travel documents

  1. If a recognised refugee or protected person intends to travel outside Namibia he or she shall apply in the form available at the Ministry, to the Commissioner for the Commissioner to issue the applicant with a travel document.

  2. On receipt of an application made in terms of subregulation (1), the Commissioner shall, if he or she is satisfied as to the purposes of the intended travelling outside Namibia, issue a travel document to such applicant.

  3. If the Commissioner is not satisfied as contemplated in subregulation (2), he or she shall, in writing, notify the applicant of the decision taken and provide reasons of the Commissioner’s decision.

  4. The Commissioner shall keep and maintain a register of all the recognised refugees and protected persons who have, in accordance with subregulation (2), been issued with travel documents.

  5. A person who applies for a travel document as contemplated in subregulation (1) shall pay a fee of N$400 if it is a first time application or a renewal of a travel document.

  6. Despite subregulation (5), a person who has been issued with a travel document as contemplated in subregulation (1), and whose travel document has either been lost or damaged, shall pay a fee of N$800 to be issued with a new travel document.

6.2.2 Do national laws and regulations provide for freedom of movement?

Yes, the Constitution contains a guarantee of freedom of movement, but it can – and in respect of refugees and persons who have applied for refugee status, has been – limited:

The fundamental freedoms referred to in Sub-Article (1) hereof shall be exercised subject to the law of Namibia, in so far as such law imposes reasonable restrictions on the exercise of the rights and freedoms conferred by the said Sub-Article, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."

6.2.3 Do national laws and regulations permit refugees to choose their place of residence and move freely within the territory? Is there an encampment policy in place? Are there designated areas or settlements for refugee residence?

No, the national laws and regulations do not permit refugees to choose their place of residence and move freely within the territory, as Namibia practices encampment and has a designated settlement area for refugee residence.

When Namibia signed and ratified the UN Convention they entered a reservation that permits the state to designate a place for reception and settlement and to restrict its occupants’ freedom of movement. In line with that, section 19 of the Refugees Act empowers the Minister to declare any part of Namibia to be a reception and residence area for recognised refugees, potential applicants for refugee status, and protected persons (which section Osire Refugee camp was established in accordance with). Section 20 of the Refugees Act empowers the Minister to restrict the free movement of an individual by issuing a written notice to that effect. Section 21 makes the contravention of section 20 a statutory criminal offence, punishable by imprisonment for a period not exceeding 90 days.

The United States (Bureau of Democracy, Human Rights and Labour) Namibia Country Report on Human Rights Practices for 2021 had the following to say in respect of freedom of movement for refugees and asylum seekers: “Freedom of Movement: The government did not permit refugees to move freely within the country. Refugees were required to live at the government’s Osire refugee settlement. The government maintained strict control over public access to the settlement but provided regular, unrestricted access to UNHCR, and UNHCR’s NGO partners. The government cooperated with UNHCR to provide food, shelter, health care, water, and sanitation at the settlement. The government issued identification cards and exit permits allowing refugees to leave the settlement to travel to specified locations for defined periods.”

6.2.4 Do national laws and regulations provide for family unity? What means of proof for family relationship are accepted?

Yes, family unity is recognised (see definitions section and sections 14 and 17). The definitions section defines member of the family as:

In terms of what means of proof is accepted for family relationships:

The Refugees Act and regulations do not prescribe anything or even offer discretionary guidelines. Annexure A to the regulations, which is the application form for refugee status, also does not offer any guidance or prescribe anything. Thus, it appears an applicant for refugee status can submit whatever proof they are able to. They are enabled by section 13(2)(c) of the Refugees Act to submit any documents they wish to in support of their application:

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

Birth registration of children born in Namibia to refugees and asylum seekers. The Births, Marriages and Deaths Registration Act does not differentiate between the registration of birth of non-nationals and nationals and simply states that “every birth which occurs within his area”:

It also states:

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

Yes, the laws provide for freedom of religious practice (but no provision for religious education). The Constitution states:

At the same time as the Constitutional provisions contained above, the schedule to the Refugees Act containing the applicable articles from the UN Convention states:

As mentioned above, in terms of the architecture of the Refugees Act, the articles of the UN Convention are fully applicable:

As mentioned above, no provisions could be located on the provision of religious education.

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

Yes, the national laws provide for equal access to education: As mentioned above, the articles from the UN Convention as contained in the Refugees Act are applicable:

6.2.8 Are refugee children included in national child protection systems?

Yes, The Child Care and Protection Act 3 of 2015 makes specific provision for the protection of refugee and unaccompanied minors. Section 233, for instance, states (1) An asylum-seeker may, in the prescribed manner, be recognised as a temporary care-giver for an unaccompanied foreign child to enable such child to stay within a particular refugee community as far as possible.

6.2.9 Do national laws and regulations provide for equal access to secondary education and university?

Yes, the national laws do provide for equal access to university. As mentioned above, the articles from the UN Convention as contained in the Refugees Act are applicable:

As only race, colour and creed are listed as grounds on which there must not be restriction on admission, this clause must be read with Article 10 of the schedule to the Refugees Act regarding equality and discrimination:

Thus, while national laws allow for equal access, whether these institutions can in reality be accessed by refugees and applicants for refugee status is questionable for two reasons: 1) they are private institutions and funding to attend them may be an issue, and 2) the camp system makes it difficult to leave the area in which the refugee or applicant for refugee status is permitted to reside which may prove to be a barrier to access in reality.

6.2.10 Do public relief/social assistance laws include refugees?

Yes

In respect of legal assistance in civil or other proceedings:

Article 95 of the Namibian Constitution, regarding “Promotion of the Welfare of the People”, states that “[t]he State shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at the following:… (h) a legal system seeking to promote justice on the basis of equal opportunity by providing free legal aid in defined cases with due regard to the resources of the State”. Technically speaking, this could provide asylum seekers with an opportunity or right to be legally represented. However, the limitation here is that legal aid is provided in “defined cases with due regard to the resources of the State” which could limit whether an asylum seeker is able to access the services.

In respect of legal assistance in criminal proceedings:

In respect of accessing the courts, nothing in the Refugees Act appears to prevent them from doing so.

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

While the laws do not specifically recognise artistic and patent rights of refugees, nothing in the legislation prevents it from being applied to refugees. In Namibia, patent rights are protected under the Industrial Property Act 1 of 2012, which was enacted on 1 August 2018. This act governs the mechanism of patent protection in the country. Patents in Namibia are managed by the Business & Intellectual Property Authority (BIPA), the national institution responsible for granting patents. The Industrial Property Act ensures the protection of inventions that are new, useful, and non-obvious in various fields, including arts, processes, machines, manufactures, or composition of matter.

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

The regulation of foreign ownership of property in Namibia is primarily governed by the Agricultural (Commercial) Land Reform Act. This Act outlines specific provisions regarding the ownership and acquisition of agricultural land by foreign nationals:

  1. Preferential Acquisition by the State: The Act requires any seller of agricultural land to first offer it to the Namibian government. The government then assesses the offer and decides whether to purchase the land or waive the offer. This provision gives the state the right of first refusal on agricultural land sales, which directly impacts the ability of foreign nationals to acquire such property.
  2. Restrictions on Foreign Ownership: The Act also regulates the acquisition of agricultural land by foreign nationals. Foreigners need special permission from the Minister to purchase land. This is a key regulatory mechanism that controls the extent of foreign ownership of agricultural land in Namibia.
  3. Leaseholds for Foreigners: In cases where foreign nationals are permitted to acquire land, it is typically through leasehold arrangements rather than outright ownership. This approach allows the government to maintain control over the land while permitting foreign investment and use.

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

As mentioned above, articles from the UN Convention that are contained in the Refugees Act are fully applicable in terms of section 2(1) of the Refugees Act. The articles related to work are as follows:

Article 17 Wage-earning employment

  1. The Contracting State shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment.

  2. In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied to a refugee who was already exempt from them at the date of entry into force of this Convention for the Contracting State concerned, or who fulfils one of the following conditions:

  1. He or she has completed three years’ residence in the country.

  2. He or she has a spouse possessing the nationality of the country of residence. A refugee may not invoke the benefits of this provision if he or she has abandoned his or her spouse.

  3. He or she has one or more children possessing the nationality of the country of residence.

  1. The Contracting States shall give sympathetic consideration to assimilating the rights of all refugees with regard to wage-earning employment to those of nationals, and in particular of those refugees who have entered their territory pursuant to programmes of labour recruitment or under immigration schemes.

Article 18 Self-employment

The Contracting States shall accord to a refugee lawfully in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the right to engage on his or her own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.

Article 19 Liberal professions

  1. Each Contracting State shall accord to refugees lawfully staying in their territory who hold diplomas recognized by the competent authorities of that State, and who are desirous of practising a liberal profession, treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.

  2. The Contracting States shall use their best endeavours consistently with their laws and constitutions to secure the settlement of such refugees in the territories, other than the metropolitan territory, for whose international relations they are responsible.

As mentioned, given the nature of the restrictions on the movement of refugees and persons who have applied for refugee status, although the above rights are extended, in practice it might be difficult to assert.

6.2.15 Do national laws and regulations provide for financial inclusion?

The national laws do not make specific provision for refugees and applicants for refugee status to have financial inclusion / bank accounts.

The Namibia Financial Sector Strategy: 2011 to 2021 is Namibia’s plan to address weaknesses in the financial sector, including limited access to financial services as well as low financial literacy and lack of consumer protection.20 They do not specify that as part of the strategy refugees and asylum seekers will be included into any efforts to ensure financial inclusion.

6.2.16 Do national laws and regulations include refugees in labour legislation and social security?

The Labour Act, 2007 does not explicitly mention refugees, but does contain a broad non-discrimination clause:

Neither the Social Security Act, 1994 nor its regulations, specify who the recipients of social security can be.

6.2.17 Are refugees with disabilities included in relevant policies and programs providing access to requisite services?

Limited assistance for disabled refugees in Namibia is addressed through various initiatives and programmes by the government and it non-governmental partners are offered at the Osire refugee camp. Specific details on these programmes are not clear.

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

The duties of refugees are contained in section 18 of the Refugees Act:

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

Yes, the government requires authorisation, by way of an exit permit, to depart the country.

6.2.20 Are there nationality limitations on the granting of such visas?

It is not clear if such limitations exist

6.3 Managing mass influx and emergencies

No, they do not make provision for measures to manage mass influxes.

6.3.1 Do national laws and regulations provide for procedures to respond to mass influx situations?

No, they do not provide for procedures to respond to mass influx situations.

6.3.2 Do national laws and regulations provide for prima facie status?

No, there are no provisions in law or regulations for group-based decision making / provision of prima facie status.

6.3.3 Do 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?

They do not make provision for identification of combatants from the refugee population, nor provisions for internment.

6.3.4 Do national laws and regulations provide special protection and assistance measures for children formerly associated with armed forces or groups regarding their demobilization and rehabilitation?

Law and regulation do not make provision for special protection and assistance for children formerly associated with armed forced / groups, regarding their demobilization and rehabilitation.

7 Durable solutions

7.1 Voluntary repatriation

The only legal framework dealing with the repatriation of asylum seekers is governed by the Refugees (Recognition and Control) Act. This Act outlines the procedures for the recognition of refugee status, the rights and obligations of refugees, and the conditions under which repatriation may occur. Namibia's policies are influenced by its commitments under international treaties and conventions related to refugees and asylum seekers. Voluntary repatriations are facilitated by UNHCR.

7.1.2 Do repatriation arrangements guarantee family unity?

Yes, in terms of the law repatriations have to guarantee family unity.

7.1.3 Do repatriation arrangements identify and address returning refugees’ specific needs – including women, children, older people, persons with disabilities, and others with particular concerns?

Unfortunately, it was not possible to obtain access to repatriation agreements and arrangements from Namibia. It was therefore impossible to confirm whether these arrangements adequately protect the rights and needs of vulnerable groups in the repatriation process.

7.1.4 Do 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?

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

Unfortunately, it was not possible to obtain access to repatriation agreements and arrangements from Namibia. It was therefore impossible to confirm whether these arrangements guarantee the rights of refugees to receive updates and accurate information.

7.1.6 Are refugees required to obtain an exit visa to depart?

Yes

7.2 Local Integration

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

There are very few measures in place in the Namibian Refugees Act that make it possible for refugees to be self-reliant. Access to measures which would enable refugees to become self-reliant, such as socio-economic rights (specifically the right to work) are afforded to refugees and protected persons in terms of the rights provisions of the Act, read with the schedule that contains the relevant provisions of the UN Convention, the Namibian Constitution and the broader instruments to which Namibia is a party. For instance, the Schedule contains the following articles related to employment:

Further, regulation 13 of the Refugee Regulations states:

Employment of recognized refugees and protected persons

  1. In the employment of persons who are not Namibian citizens, every employer shall, with due regard to efficiency, economy and practicability, give preference to applicants who -

  1. are recognized refugees or protected persons; and

  2. possess the qualifications, expertise and experience required for such employment.

Provided that those recognized refugees or protected persons have, except to the extent otherwise provided in paragraph 2 of Article 17 of UN Convention on Refugees, 1951, complied with the requirements of Part V of the Immigration Control Act in so far as those requirements relate to employment in Namibia."

However, the sections do not seem practical / implementable given that refugees and asylum seekers are confined to the camp, both in practice as well as a result of section 20 of the Refugees Act which contains the requirement to reside in a reception area or settlement area.

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

The Namibian Citizenship Act 14 of 1990 does not specifically facilitate the naturalisation of refugees but all persons who seek to naturalise are subject to the same process and requirements as set out in section 5 of the Act. It is read together with the Constitution (or the Constitution is read with the Citizenship Act).

(Note that section 5(b) of the Constitution was amended to increase the period to ten years, making it more difficult to obtain citizenship).21

The Regulations to the Citizenship Act provide the form that the application must be made on (Annexure D). In sum, refugees must follow the same route and requirements as any other person seeking to naturalise in Namibia – as per the requirements of section 5 of the Citizenship Act.

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

As in the case of citizenship, the Immigration Act does not specifically facilitate the permanent residence of refugees and asylum seekers, but rather, it facilitates the acquisition of permanent residence for everyone who qualifies. Section 24 of the Immigration Act regulates this:

The Constitution and Citizenship Act allows for the acquisition of nationality for refugee children born in the country.

The Constitution states in “Chapter 2: Citizenship Article 4: Acquisition and Loss of Citizenship” section 2(1)(d):

The Citizenship Act states:

Thus, in order to obtain citizenship by descent the person has to be born in Namibia to a father or mother are ordinarily resident in Namibia at the time of the birth.

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

There does not seem to be any barriers for refugees to access other migration or skilled entry schemes.

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

In Namibia, the recognition of foreign qualifications is managed by the Namibia Qualifications Authority (NQA). The process involves evaluating qualifications obtained outside Namibia that have not been registered on the National Qualifications Framework (NQF) of Namibia. This includes qualifications obtained before the development of the NQF or from other countries. The evaluation process conducted by the NQA aims to confirm the legality, validity, and credibility of the submitted qualification documents and the qualifications they represent. The NQA analyses available information to express each qualification in terms of the nomenclature and structural features of the National Qualifications Framework of Namibia.

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

No, refugees are not included

7.2.8 Are there 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?

Yes, the National Action Plan on Women Peace and Security includes refugee women and children. Strategic Objective 2, under Pillar 3 relief and recovery, states as an objective: To ensure women and children’s needs are met in refugee and IDP camps

  1. SAMCO Comprehensive Monthly Report (October 2022). This report was provided by UNHCR to us and is not yet available for distribution to the public.↩︎

  2. SAMCO Comprehensive Monthly Report (October 2022). This report was provided by UNHCR to us and is not yet available for distribution to the public.↩︎

  3. https://namiblii.org/na/judgment/supreme-court/2002/1↩︎

  4. Cannot find judgment. See summary in http://www.refugeerights.uct.ac.za/usr/refugee/Working_papers/Working_Paper_1_of_2012.pdf↩︎

  5. Cannot find judgment but see https://www.refworld.org/pdfid/559e41404.pdf for summary.↩︎

  6. https://namiblii.org/na/judgment/supreme-court/2004/2↩︎

  10. http://www.lac.org.na/laws/2020/7159.pdf↩︎

  11. https://reporting.unhcr.org/sites/default/files/UNHCR%20Southern%20Africa%20COVID-19%20Six-Month%20Report_0.pdf page 18↩︎

  12. https://reporting.unhcr.org/sites/default/files/UNHCR%20Southern%20Africa%20COVID-19%20Six-Month%20Report_0.pdf page 18↩︎

  13. https://reporting.unhcr.org/sites/default/files/UNHCR%20Southern%20Africa%20COVID-19%20Six-Month%20Report_0.pdf page 19↩︎

  14. https://reporting.unhcr.org/sites/default/files/UNHCR%20Southern%20Africa%20COVID-19%20Six-Month%20Report_0.pdf page 19↩︎

  15. (GN 235/2000; GG 2412)↩︎

  16. Interview with Immanuel Tomas of Legal Assistance Centre on 28 November 2022.↩︎

  17. Interview with Immanuel Tomas of Legal Assistance Centre.↩︎

  18. GN 235/2000; GN2412).↩︎

  19. Interview with Immanuel Tomas of Legal Assistance Centre on 28 November 2022.↩︎

  20. https://www.bon.com.na/CMSTemplates/Bon/Files/bon.com.na/e7/e7e69c6d-b02b-4109-8d3d-5b41a79f9d89.pdf↩︎

  21. Amended by: [Sub-Article (5)(b) is amended by the Namibian Constitution Second Amendment Act 7 of 2010.]↩︎

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