Understanding the Law on the Grant of Asylum and Its Procedure in Uganda
Immigration involves various international conventions, regional and national legislation and involves the movement of persons from one place to another or across one international boarder to another. Movement across international borders takes different formats for instance trafficking, seeking refuge, asylum, or gainful employment in other jurisdictions
Historical outlook
Historically, asylum has been regarded as a place of refuge where one could be free from the reach of a pursuer. Despite its long lasting and worldwide practice, the term asylum still awaits an internationally recognized definition. Asylum entails admission, acceptance, incorporation, protection and residence of an asylum seekers granted by another state. An asylum seeker is a person who has fled persecution in their home country and is seeking safe haven in a different country but hasn’t yet received any legal recognition or status.
Often not, asylum candidates are mistaken for refugees and refugees mistaken with internally displaced persons and at times mistaken with migrants. All these categories of persons differ on various grounds including the reason of movement and whether or not they have crossed an nternat6ional border in pursuit of a new residence.
There are over 2.2 million refugees in Sudan, Uganda, Ethiopia, Kenya and the Democratic Republic of Congo. The refugee population in Uganda is estimated to reach 1,484,356 by the end of 2021 with refugees taking residence in various districts, the peak locations being Yumbe, Adjumani, Isingiro and Kyegegwa.while the Ugandan borders have been officially closed for asylum since March 2020 to reduce the spread of COVID-19, there have been several instances of groups of asylum seekers admitted. Uganda further ranks fifth in the top ten countries receiving the most refugees with 3.8% and receives 1.7 million refugees from Burundi, Somalia, Rwanda and several other countries.
Uganda receives various categories of asylum seekers and these include children, women, asylum seekers with disabilities, older persons amongst others.
UN Refugees and Asylum Seekers.
A refugee is defined according to the U.N. Refugee Agency (UNHCR), "as someone who has been forced to flee his or her country because of persecution, war or violence. A refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group".
At the 1951 Refugee Convention, 145 countries agreed to this definition of refugee. Refugees are people who are afraid to return to their home country or are unable to. Some of the main reasons people become refugees are war, along with violence based on ethnicity, tribe or religion. Many live in refugee camps, where they receive international aid.
Whereas Asylum seekers are, people who flee their country and enter another to apply for asylum in hopes of gaining refugee or asylee status. As compared to official refugees, they are awaiting their requests to be processed. Every refugee starts as an asylum seeker. There are 3.5 million asylum seekers in the world.
While in the strict sense the Universal Declaration of Human Rights (UDHR) isn’t a legally binding instrument, it has been declared to set forth the inalienable and inviolable rights of all members of the human family and to constitute an obligation for members of the international community. In its Article 14, it establishes the right to seek and enjoy asylum from persecution. A literal interpretation of this Article presupposes that one has a right to the grant of asylum which is not the case since it is the right of a state to grant asylum but not the right of an individual to be granted asylum by the state. This is supported by the 1951 Convention Relating to the status of Refugees and the 1967 Protocol Relating to the Status of Refugees.
What does the law say on Asylum Seekers?
The right to a grant of asylum has both in Uganda and internationally been categorized into territorial, extraterritorial and neutral asylum. In Uganda, the most sought form of asylum is territorial asylum which is granted within the territorial boundaries of a state unlike extraterritorial asylum which is granted outside Uganda’s boundaries but in state designated areas like consulates, embassies, and state merchant vessels on high seas. This often results into diplomatic asylum. The least sought after is neutral asylum which is granted at the discretion of a state exercising neutrality in times of war within its territory to persons actively participating in international armed or non-armed conflicts.
The grant of territorial asylum in Uganda is impliedly provided for by the constitution of Uganda whose Article 20 provides for the right to life. As the right to life is the prerequisite for the enjoyment of every other human right, so the right to asylum is the prerequisite for the enjoyment of the basic rights of refugees and asylum seekers. It is also provided for by the Refugees Act 2006 and the OAU Convention governing the Specific Aspects of Refugee Problems in Africa pronounces in Article 2(1) that member states of the organization of African Unity shall use their best endeavors consultative with their respective legislations to receive refugees.
To effectively appreciate the right of asylum, one must ascertain and balance the right of a state to grant asylum and the right of an individual to seek asylum and lastly the right of an individual to be granted asylum. The principle off territorial sovereignty connotes that a state has exclusive control on its territory and persons therefore one of the inevitable consequences is that every foreign state has the right to grant or deny asylum to persons within its borders. This right has been viewed as the right of a state other than the right of an individual.
In Uganda, to be recognized as a refugee, foreign nationals have to apply to the Refugee Eligibility Committee and go through an individual RSD process which is regulated by the Refugee Act 2006 and the Regulations of 2010. This also applies to all asylum seekers in Uganda.
What is the Procedure for one to be given Asylum?
The application process for a successful grant of asylum depends on whether the asylum seeker arrives straight into a Refugee settlement camp or through an airport. If one arrives through a settlement camp, he is required to apply to the settlement Commandant for registration while if through an international airport and not a camp, to the CID for registration. Documents like passports, birth certificates, driver’s license, are required by an asylum seeker for proper identification upon which a card and details are given for further registration. Later, one must report to the Office of the Prime Minister with identification documents for profiling upon which a temporary asylum seeker attestation is granted.
A second interview at the CID for Refugee status determination is made upon which the decision is communicated to the Office of The Prime Minister department of refugees upon which a refugee card is attained.
Asylum seekers must however prove that they have a well-founded fear of future persecution based on race, religion, membership in particular social groups or political opinion. Such persons must be by government or a group government can’t control.
Despite the existence of legislation on the protection of refugees in Uganda, there is need for an independent state asylum system, policies on the grant of asylum so as to manage the arrival, admission, residence of asylum seekers and further, the grant of asylum. This will enable asylum seekers and refugees to enjoy the rights to which they are entitled under international law. A state asylum system is the totality of strategies, laws, policies and action plans, in combination with resources and institutions that form a state’s response to asylum seekers and refugees. This will involve establishing a legislative framework and related policies, strategies and action plans that enable the government to fulfill its international obligations to asylum seekers and refugees.
Domestic laws and policies on asylum need to be framed fairly taking into account the diversity of asylum seeking populations. Given the unprecedented times, Uganda requires an asylum agency to grant asylum to candidates who heed to the various requirements. Just like the pandemic prevails, the threat to millions of foreign persons seeking refuge in Uganda prevails and this right should not be put to a pause.
By Josephine Luzige
UCU University
Faculty of Law
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