ACCESS TO JUSTICE AND LEGAL AID FOR REFUGEES AND ASYLUM SEEKERS; WHAT CAN THE JUDICIARY DO?
Introduction
Asylum seekers, regardless of their immigration status, are human beings, with fundamental and basic rights, needs and aspirations. Refugees and asylum seekers are a diverse group with one thing in common; they are subject to forced migration, and are fleeing from persecution in their countries of origin.
A refugee is defined as any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his or her nationality and is unable or owing to such fear for reasons other than personal convenience is unwilling to avail himself or herself of the protection of that country. Refugee status is therefore adopted for those who, having applied for asylum, have been recognized and given refugee status. It also usually encompasses those who have received ‘exceptional leave to remain’ or ‘indefinite leave to remain’. Recognition of refugee status is also a pre-requisite for other basic rights guaranteed to refugees by international law, such as the right to seek employment, to move freely and to obtain education and healthcare on the same terms as citizens.
The status of an Asylum Seeker is reserved for those who have applied for asylum and are awaiting a decision on their applications and those whose applications have been refused.
Refugees therefore need legal assistance as soon as they arrive in a host country. Their lives may depend on the outcome of a refugee status determination (RSD) proceeding. Failure to gain such status exposes a refugee to the risk of forcible repatriation and subsequent persecution.
The legal right to refugee protection and to seek asylum is a cornerstone of the 1951 Refugee Convention. It is however hard for Asylum seekers to find good quality free legal advice. It is estimated that 64% of Asylum seekers have been wrongly refused a legal aid lawyer for their asylum appeal which is one of the most critical stages in the asylum process. Often, they’re forced to deal with the complicated asylum systems on their own. Without legal support, their asylum claims can be wrongly refused. Many are then denied legal aid to appeal that decision, due to an unfair means test system. For some, the double blow leads to destitution on streets or forced removal back to the country they fled.
Majority of forced migrants live in areas with limited proximity to justice institutions and legal aid service providers. They do not have the financial, emotional and legal capacity or knowledge to adequately present their cases to the authorities and courts of law. Many are traumatized, disoriented, have limited language capacity and little or no knowledge of the justice system. There is need to bring legal aid services closer to forced migrants, build capacities of justice institutions on issues of forced migration and empower forced migrants to demand for their rights.
There is need therefor to recognize the right of asylum seekers to legal protection and especially in the most dire of cases as at this point of their lives, they are very vulnerable. The right to legal aid is a right recognized under various international instruments and also various states have incorporated in their national legislations legal aid.
Without legal aid, many refugee claimants have had to prepare their cases on their own even though they lack the legal knowledge to do so. They have had to rely on overburdened community organizations who though they have good intentions, lack legal training on refugee protection. Some of these claimants have fallen victim to unscrupulous representatives.
In cases of refugee protection, little is known of the efforts made by the judiciary to ensure access to justice and legal aid for refugees and asylum seekers. The need for the judiciary to assist in ensuring access to justice and legal aid for refugees and asylum seekers is a matter of great importance bearing in mind, that it is the same judiciary that seeks to prove legality and determines refugee status.
KENYA AND REFUGEE PROTECTION
In East Africa, socio-legal research on refugee rights identified an urgent need for permanent legal aid for refugees. As of September 2011, UNOCHA had Kenya hosting 557,430 refugees and asylum seekers. Most reside in designated camps in Kakuma and Dadaab with a sizeable amount moving to urban centers in search of better living conditions.
In Kenya the provision of access to justice and legal aid has been facilitated by RCK and UNHCR offices. RSD cases are rarely taken to court and most are handled by the UNHCR offices. The Refugee Consortium of Kenya provides legal aid clinics. The legal aid clinics advice on matters of security, SGBV, employment and asylum status among others. The legal aid embraces the evolving legal framework on forced migration to effectively discharge its mandate. It uses the provisions of the relevant statutes, international instruments and the provisions of the Kenyan Constitution as catalysts geared towards protecting the rights of refugees and other forced migrants in Kenya.
The Refugees Act (2006) of Kenya has given refugees in the country legal status. Legal Aid together with Advocacy ensures that the Kenyan judiciary and law enforcement agencies acquaint themselves well with the Refugee Act of Kenya and its implications. Legal Aid seeks to make significant contributions to the promotion of access to justice for refugees and other forced migrants through designing and implementing projects and activities on public interest litigation, community outreach and legal aid, and refugee empowerment for self-presentation.
Asylum seekers and refugees receive free legal aid and representation on asylum and immigration related charges in police stations, remand prisons and courts of law using RCK legal officers as well as a pool of trained pro-bono lawyers. It also provides legal aid and representations during the refugee status determination process by assisting asylum seekers to prepare for RSD interviews, drafting appeals for rejected asylum seekers and liasing with UNHCR on processes that need to be expedited.
RCK provide legal advice on SGBV, child protection and pre and post-trial counseling to refugee women and children. It is also involved in community-Based protection monitoring where it maintains a pool of paralegals that constantly provide it with information on arrests, pending and concluded court cases with deportation orders for intervention.
This has however proved not to be adequate in protection of refugee and asylum seekers rights as there is still lack of a defined legal protection mechanism in refugee protection. This is attributed to various factors; 1. The definition of who is really a refugee? UNCHR handbook notes that a person does not become a refugee because of recognition, but is recognized because they are a refugee.

2. Well- founded fear of persecution- applicant has to prove these. Where both the subjective (fear) and objective element (well-founded) must be present in order for a person to qualify for refugee status.
Access to Justice and Legal Aid by refugees Hampered

National legislation on refugee status- the UNCHR handbook states, that a person does not become a refugee because of recognition, but is recognized because they are a refugee.
In certain jurisdictions, it is very hard for a person seeking asylum to make it to the courts as the laws in these jurisdictions are even very stringent.
Take the case of the UK, though other countries who are members of the EU are bound by the directive on minimum treatment of asylum seekers and refugees, the UK has its own laws as regards admission and treatment of asylum seekers.
UK LAWS
Asylum seekers experience an interface with legal and criminal justice systems soon as they enter the UK. Their entry is subject to a wide range of checks instituted by legislation including collection of biometric information. The legal process on asylum itself represents particular difficulties for certain groups. Women who have experienced gender persecution have been detained inappropriately in the fast-track system.
There are also strong concerns about the implementation of the UK Border Agency (UKBA) gender guidance when dealing with women’s asylum claims.
Complex process of refugee status determination
CANADA
Becoming an accepted refugee to Canada is a complex process. Imagine filling out more than 20 pages of application forms – and more for your family members – as soon as you arrive in Canada. Imagine writing out the traumatic circumstances that made you leave your home behind forever into boxes on the application forms. You have to do this even when you don’t speak English or French, or when you went to school for only a
Imagine that these 20 pages of application forms are the main basis of a formal hearing that decides whether you stay or go. At the hearing, you will be questioned about what you wrote on those forms, and any discrepancies or missing information will call your
And imagine that you have only one chance to make your case. If you get it wrong, you may be sent back to your country. And no matter what happens there, Canada will not
The refugee process is too complicated for most people to navigate alone, without a lawyer.
And the stakes are too high. Studies show that people with lawyers are almost three times more likely to be accepted than refugees without lawyers.

Refugee lawyers work with Canadian legislation, the Charter and international law. They help refugees to tell their stories and complete the applications, gather evidence, refer them to forensic doctors to document injuries and psychologists to document trauma. They prepare them for their hearings. They research conditions in claimants’ home countries. They represent them at the Immigration and Refugee Board, and if refused, at the Federal Court, Court of Appeal and Supreme Court.

Recent changes in federal law have brought in sweeping restrictions on the rights of refugees. These changes impose extremely tight timeframes, deny appeal rights to people from designated countries, and make it more likely that refugees will be detained while they go through the legal process.

Lack of funds- funding for refugee rights advocacy, especially refugee legal aid is rare and fickle. Like in Canada, there are calls to limit and reduce on the budget on legal aid of refugees (criterio). Considering that these is already a problem area and it is very hard to get lawyers willing to offer these services, a decrease in budget will make the situation even more dire. Given the fact that those seeking legal services are persons who have no means to pay for I, it makes the possibility for access to justice become non-existent.

Number of refugee cases vis-a vis back up system to determine refugee status- unlike normal cases that are taken to courts and ordinary litigants who gain access to courts, the refugees situation represents a different ball game all together to the legal system.
When talking of refugee protection, and grant of refugee status in mot cases, a country would be faced with an influx of more than 1000 people seeking refugee protection. If these multitude all seek protection of court to determine their status, we get that most of them will end up not assessing the courts as these same courts would be too overwhelmed to fast track on the cases.
It is therefore important to come up with a backup system that would handle refugee claims and ensure that each is able to get access to justice.

What judiciary can do? 1. Ensure fair procedure for determining refugee status 2. Cases (precedent) 3. Legislation 4. Alternative forums to establish plight of refugees 5. Community awareness (legal clinics on refugee rights)

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[ 1 ]. Joint Committee on Human Rights, 2007
[ 2 ]. Peter Aspinall and Charles Watters: Refugee and Asylum Seekers; A review from an equality and human rights perspective 2010.
[ 3 ]. Article 1A refugee Convention 1951
[ 4 ]. Starting a movement for refugee rights in the global south: Asylum Access and Beyond.