Instruments that the state has currently acceded to/ratified

• 1951 Convention Relating to the Status of Refugees (acceded to on 14 May 1981)

• 1967 UN Protocol Relating to the Status of Refugees (acceded to on 14 May 1981)

• 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (ratified on 18 November 1988)

• 1954 Convention Relating to the Status of Stateless Persons (acceded to on 4 November 1974)

• 1961 Convention on the Reduction of Statelessness (acceded to on 24 September 2004)

2.1.2 Current reservations made

The Kingdom of Lesotho made declarations and reservations in relation to Articles 8, 9, 25 and 31 of the 1954 Convention, resulting in reducing stateless persons’ access to administrative assistance, which can undermine their protection against expulsion and the fair treatment of their interest and property.

2.2.1 List of legislations and regulations related to asylum and refugee protection as well as migration:

A good resource for Lesotho legislation and case law is LesothoLii.

1. Refugee Act (1983)
2. Refugee Act Regulations (Unavailable publicly)
3. Aliens Control Act (1966)
4. Lesotho Passports and Travel Documents Act (2018)
5. Anti-trafficking in Persons Act (2011)
6. Children’s Protection and Welfare Act (2011)
7. Prevention and Suppression of Terrorism Act (2018)
8. Persons with Disability Equity Act (2021)]

According to the Committee on the Rights of Migrant Workers and their Families (2018): 43. Further, the Ministry of Home Affairs is currently undertaking a review of the Aliens Control Act, 1966 in order to align it with the provisions of the Convention. The proposed new immigration law is intended to comply with the Convention by amongst others providing for prohibition of collective deportation, establishment of measures aimed at addressing irregular migration and the prohibition of expelling migrant workers or depriving them of their authorization of residence merely on the ground of failure to fulfill an obligation arising out of a work contract unless fulfillment of that obligation constitutes a condition for such authority or permit as well as provide for the right to family reunification.

The Lesotho Immigration and Citizenship Policy of 2017 has been adopted by the Cabinet (references found in other documents, but document itself unavailable online. Lesotho National Migration and Development Policy 2013 (not available online). National Strategic Development Plan 2018/19 – 2022/23

2.2.2 List and upload all major judicial decisions related to asylum and refugee protection.

1. Eyob Belay Asemie v P.S. Ministry of Home Affairs and Others (CIV/APN 519 of 12) [2013] LSHC 19 (13 February 2013) Summary: Application to interdict respondent from denying applicant use of regular passport and to review and set aside the declaration of the passport as null and void to be irregular, unconstitutional and unlawful – whether applicant was entitled to a hearing before the decision was made – whether applicant established he has a right to the passport – whether respondents were correct to deny applicant re-entry into Lesotho – issuance of passport to applicant illegal and cannot be sanctioned - applicant not entitled to the audi alteram partem before the decision was taken – respondents’ decision to deny applicant re-entry unlawful.
2. O/C Military Police and Others v Asemie (CIV/APN 2012) [2012] LSCA 49 (19 October 2012) Summary: Refugee Act 18 of 1983 - naturalization of refugee under section 14 - total residence-period prior to application for naturalization six years - application prior to expiry of six-year period ineffective.
3. Zwelakhe Mda v Minister of Home Affairs and Others (CONSTITUTIONAL CASE 4 of 2014) [2014] LSHC 30 (24 September 2014) Civil Procedure – Application procedure – Dispute of fact – Urgency –Constitutional Litigation rules. Constitutional law – Arbitrary deprivation of citizenship status unjustified and wrongful refusal to replace expiring passport violates citizen’s constitutional right to freedom of movement, particularly not to be refused entry to or exit from one’s country – such a right would be empty without a concomitant right not to be deprived of the document which makes such movement possible – Withdrawal of citizenship – lawful only when done in compliance with law and procedure. Evidence-Admissibility and evidential weight of public documents – whether a birth certificate is a public document – whether a passport is a public document.
4. R v Sheng (CRI/T 45 of 95) [1997] LSHC 68 (25 August 1997)

Refugee

In terms of section 3(1)(a) – (c) of the Refugee Act:

Asylum seeker

No definition

Child

In terms of Section 3 of the Children’s Protection and Welfare Act (2011) “child” means:

Unaccompanied and/or separated child

There is no direct definition for an unaccompanied or separated child in Lesotho’s laws, however, the Children’s Protection and Welfare Act defines a vulnerable child.

Family

Section 2 of the Refugee’s Act defines a “member of family”:

Section 3 of the Children’s Protection and Welfare Act defines a member of the family:

Guardian

Household member

Victim of trafficking

Section 2 of the Anti-trafficking in persons Act defines “victim of trafficking” as:

Stateless person

The laws do not define stateless person, but the definition found in Article 1 of the 1954 Convention may apply. Lesotho is signatory to the convention. The definition is: A stateless person is not recognised as a national by any state under the operation of its laws.

Returnee

No definition.

3.1.1 The principle of non-refoulment in the national context

The Refugee Act in section 11 on non-refoulement states:

No exceptions to the non-refoulement rule is allowed. But the Refugees Act does make provision for expulsion (presumably to countries where the refugee is not at risk). Section 12 states as follows:

3.2.1 National Laws and regulations regarding entry of asylum seekers

Section 7(1) of the Refugees Act requires legal entry presence for an application to be recognised as a refugee, but does not penalise an asylum seeker for illegal entry or stay prior to application. An asylum seeker would thus be required to enter the country in terms fo the Aliens Control Act, and even legalise their presence in terms of the Aliens Control Act before applying for refugee status.

All other migrants’ entry is regulated solely by the Aliens Control Act. The Act does not make provision for other kinds of international protection.

3.2.2 Limitations on access to asylum during periods of National Emergency

Access to asylum and protection were heavily compromised in Lesotho, as in other SADC countries, by border closures during the COVID 19 pandemic lockdowns.

4.1.1 Access to reception facilities for asylum seekers

Legislation does not make provision for reception facilities. UNHCR closed offices in Lesotho in 2002, having catered for thousands of South African refugees during Apartheid.

4.1.2 Further accommodations made for reception of particularly vulnerable groups among asylum seekers

The Refugees Act does not make provision for gender or age specific measures.

4.2.1 Detention of asylum seekers

Detention is allowed under the Aliens Control Act to effect removal or for unauthorised entry or stay. It does not specify, nor exclude asylum seekers.

Section 34(2):

A person detained in pursuance of any provision of this Act (otherwise than on board an aircraft, train or vehicle) may be detained at any place used by an authorised officer for the purpose of his duties at a port of entry and departure or any place specially provided for the purpose of detention at a port of entry and departure or any police station or prison or such other place as may be prescribed by order of the Minister; and every person detained in pursuance of any such provision shall, while so detained, be in lawful custody."

The Constitution provides in section 6(1):

Every person shall be entitled to personal liberty, that is to say, he shall not be arrested or detained save as may be authorised by law in any of the following cases, that is to say - (i) for the purpose of preventing the unlawful entry of that person into Lesotho, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Lesotho or for the purpose of restricting that person while he is being conveyed through Lesotho in the course of his extradition or removal as a convicted prisoner from one country to another).

4.2.2 Detention of Children

The Alien’s Control Act does not specify that children may be detained but does not exclude children from detention either. A report by the Global Immigration Detention Observatory (2020) indicates that although not provided for in law, unaccompanied minors are detained in practice.

4.2.3 Detention conditions set out in the laws and regulations

The legislation does not specify separate conditions or detention centres for asylum seekers.

In 2016 the Committee on Migrant Workers made the following recommendations to Lesotho:

Due process, detention and equality before the Courts

29. The Committee notes information provided by the State party regarding measures to ensure that, in criminal and administrative proceedings, including expulsion proceedings, migrant workers and members of their families, in particular those in an irregular situation, are provided with access to consular assistance and that due process is guaranteed. The Committee is concerned, however, that migrant workers in an irregular situation awaiting expulsion are subjected to detention, often detention facilities of the Police and Correctional Service where convicted persons or pretrial detainees are held.

30. In the light of its general comment No. 2 (2013) on the rights of migrant workers in an irregular situation and members of their families, the Committee recalls that administrative detention should be used only as a last resort, and recommends that the State party consider alternatives to administrative detention. It recommends that the State party:

1. Include in its second periodic report detailed disaggregated information on the number of migrant workers detained for immigration offences and the place, average duration and conditions of their detention;

2. Ensure that migrant workers detained for violations of immigration law are not detained with persons accused or convicted of a crime;

3. Ensure that the minimum guarantees enshrined in the Convention are assured with regard to criminal or administrative procedures against migrant workers and members of their families.

Regarding expulsions the Committee on the Rights of Migrant Workers and their Families notes the following (some may be refugees):

Section 25 (Aliens Control Act) prescribes the Minister and courts of law as the competent authorities to issue deportation or expulsion orders. Below is a table illustrating migrant workers deported from 2006 to date:

4.3.1 Social and legal assistance offered to asylum seekers

Currently there is no form of social or legal assistance that appears to be available to asylum seekers and refugees in Lesotho.

4.4.1 Right to Family Unity

The Constitution of Lesotho makes provision for fundamental rights. Section 4(g) states:

4(1) Whereas every person in Lesotho is entitled, whatever his race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status to fundamental human rights and freedoms, that is to say, to each and all of the following - (g) the right to respect for private and family life.

Both the Aliens Control Act (sections 6 and 7) and the Refugees Act (section 8) make provision for the family of the refugee / migrant to join them in Lesotho.

Section 8 of the Refugees Act makes provision for family unity by recognising the refugee’s family as refugees as well.

4.4.2 Socio-economic rights afforded to asylum seekers: work, education healthcare and freedom of movement

In the Constitution of Lesotho, the right to health is not provided for under the part regarding fundamental human rights and freedoms, but it is recognised under the part on principles of State policy. According to UNHCR, refugees in Lesotho enjoy access to basic health care and receive assistance to access basic education. Refugees are permitted to seek employment once they secure work permits, and those without jobs are eligible for a government grant. Additionally, the government has implemented various initiatives to furnish refugees with housing, with the provision of water and electricity at no charge.

4.4.3 Access to UNHCR facilities for asylum seekers

The legislation only refers to UNHCR where it makes provision for a refugee board which includes a representative from UNHCR. Where the application of an asylum seeker has been rejected by the Minister, it may be referred to the Refugee Board.

4.5.1 Determination of ‘Child’s Best Interest’ principle among asylum seeker children

The Children’s Protection and Welfare Act makes provision for the best interest of the child to be considered in section 4.

Whether there are best interest determination panels are implemented is unclear.

Section 10 of the Children’s Protection and Welfare Act makes provision for the child’s right to family unity.

The UN Committee on the Rights of the Child made the following recommendations to Lesotho in 2018:

Family reunification

43. While noting that sections 6 (3) and 7 (2) of the Aliens Control Act 1966 provide for family reunification, the Committee is concerned that the power to order family reunification is largely at the discretion of the minister responsible for administering the Act.

44. The Committee recommends that, during the review of the Aliens Control Act of 1966, the State party introduce appropriate measures to facilitate the family reunification of migrant workers and members of their families in line with article 44 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

4.5.2 Registration of births and documentation among asylum seeker children

The Children’s Protection and Welfare Act makes provision for identity and registration rights in sections 7 8, and 9.

The Registration of births and Deaths Act in section 3 states that “the registration of birth of a child, whether born alive or still born, … after the commencement of this Act shall be compulsory.”

The UN Committee on the Rights of the Child made the following recommendations to Lesotho in 2018: Concluding observations on the second periodic report of Lesotho (CRC/C/LSO/CO/2)

Birth registration and nationality

24. The Committee notes the creation of one-stop shops that provide birth registration services and the provision of space for birth registration in community council facilities since March 2018, mobile registration and citizenship centres, as well as the efforts of the Government jointly with other stakeholders to increase awareness of birth registration. However, the Committee remains concerned about:

1. Low levels of birth registration, in particular in rural areas, and difficulties and delays in registration owing to registration services at times not being available in easily accessible locations; (b)Penalties for late registration; (c)Foundlings, who appear to have been born in the State party, not being provided with citizenship even if they would otherwise be stateless; (d)Discriminatory provisions in law, including in the Constitution and under the Citizenship Order (1971), against Basotho citizens born abroad and Basotho women that could undermine the child’s right to acquire nationality without discrimination; (e)Citizenship applications being restricted to stateless persons who are over 18 years of age and lawfully in the country; (f)The absence of data on stateless children.

25. Taking note of target 16.9 of the Sustainable Development Goals, on providing legal identity for all, including birth registration, the Committee recommends that the State party:

1. Strengthen the use of mobile birth registration teams to cover remote communities and extend the birth registration process to hospitals throughout the country; (b) Strengthen its efforts to implement birth registration procedures immediately after birth and ensure the issuance of birth certificates, in particular at the community level; (c) Remove penalties for late birth registration; (d) Adopt legislative measures to prevent discriminatory rules, and provide safeguards in respect of the right to acquire nationality for all children in the State party, including foundlings, who would otherwise be stateless; (e) Collect data on stateless children in the State party; (f) Launch extensive awareness-raising programmes about the importance of birth registration and registration processes; (g) Seek technical assistance from the Office of the United Nations High Commissioner for Refugees (UNHCR) and UNICEF, among others, in the implementation of these recommendations.

The UN Committee on the Rights of Migrant Workers and Their Families made the following recommendation to Lesotho:

"Birth registration and nationality

37. The Committee welcomes the signing of a declaration of intent between the State party and South Africa establishing the Lesotho Special Permit, to regularize unskilled Basotho migrant workers in South Africa. The Committee is concerned, however, that, as the number of Basotho migrant workers migrating to South Africa increases, children born to these migrant workers are at risk of statelessness as there is no mechanism to ensure systematic consular birth registration.

38. The Committee recommends that the State party:

1. Intensify efforts, including in the context of the Lesotho Special Permit scheme and the provision of consular services, to ensure that all children of Basotho migrant workers abroad, particularly in South Africa, are registered and issued with personal identity documents, in line with target 16.9 of the Sustainable Development Goals;

2. Ensure that its consular offices in South Africa raise awareness about the importance of birth registration among Basotho migrant workers and members of their families, especially those in an irregular situation;

3. Intensify efforts for the implementation of the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

5.1.1 Reception official at first instance

The Refugees Act makes provision for an Inter-Ministerial Committee for the Determination of Refugee Status (section 5).

In terms of section 5(3) the functions of the Committee shall primarily be:

5.1.2 Availability of Legal Aid

Legal representation is allowed but it is not clear whether it is free.

The law does not make provision for the asylum seeker to receive information and guidance in a language or manner they understand.

The law does not make provision for interpreter’s services, but it does allow for legal representation. It is not clear whether such advice would be free.

According to the Committee on the Rights of Migrant Workers and their families: Generally, non-citizens who happen to appear before courts of law are afforded interpreters where they do not understand the local language or the courts do not understand their language at the expense of courts. In the High Court, migrant workers are no exception as they are assisted with legal representation paid for by Government.

The legislation does not make provision for asylum seekers to be given access to their personal interview report.

5.2.1 Confidentiality of personal information and data

The legislation does not make provision for refugee specific confidentiality, but the Data Protection Act 5 of 2012 applies to refugees and asylum seekers.

5.3.1 Registration of family members of registered asylum seekers

The Refugees Act makes provision for the family of the refugee to apply for refugee status (section 8). Family members of refugees are allowed to apply for their own refugee status. See section 8:

5.3.2 Obstacles to applying for asylum while in detention

The Refugees Act makes it clear that asylum seekers may not be detained on the basis of illegal entry and presence alone, and must apply for status within 14 days. Section 9(1) states: Subject to section 7, and notwithstanding anything contained in the Aliens Control Act, 1966, a person claiming to be a refugee within the meaning of section 3(1), who has illegally entered or is illegally present in Lesotho shall not,(a)be declared a prohibited immigrant;(b)be detained; or(c)be imprisoned or penalised in any other way, only by reason of his illegal entry or presence pending the determination of his application for recognition as a refugee under section 7.

5.3.3 Making a claim for asylum at the border

The procedure for application is the same whether made at the border or in country.

Asylum seekers at borders and elsewhere must make application to the nearest “authorised officer” and are referred to the designated authority for application.

The Refugees Act requires a person to be legally present in the country for application, but doesn’t prevent such a person from applying for refugee status. Section 19(1) and (2) of the Aliens Control Act impose a duty on non-citizens to register on entry in Lesotho.

5.3.4 Necessity of travel or identity documents for concerned persons

The Refugees Act does not require the asylum seeker to provide travel documentation or any sort of related documentation at the border

5.3.5 Challenges for individual asylum seeker claims for females

The law does not make specific provision for the separate advising of women in a household where a man is the head of the household.

5.5.1 Standard of credibility for an asylum claim

The standard of proof is not specified in legislation.

5.5.2 Provisions and standards for decision makers

Section 7 of the Refugees Act contains provisions on the application process but does not contain specifics on the decision-making process.

5.5.3 Assessment of individual claims of family members and dependents of potential refugees

The law seems to allow it, but it is not clear whether this is allowed in practice.

5.6.1 Interview and decision making process at first instance

Section 7(3) requires the Committee to invite the applicant to appear before it.

Although the Refugees Act does not specifically exclude family members from submitting their own claims, the Act does not stipulate that each family member be interviewed. The family of the refugee is allowed to make application for refugee status on the basis of being family members.

5.6.2 Access to ‘Country-of-Origin Information’(COI) available to decision makers

Information on the use of up-to-date country of origin unformation is not available, but the fact that the legislation makes provision for a Refugee Advisory Board which is made up of several experts including a UNHCR representative implies that the decision makers are in principle privy to relevant country information.

5.6.3 An asylum seekers access to a decision and possibility to appeal

The legislation does not make provision for this, but a case may be made for obtaining the report based on the Data Protection Act. If an application is rejected and the asylum seeker reapplies in terms of section 7, they could use the report and the justification in their 2nd application.

5.8.1 Asylum seekers right to appeal decisions

Section 7(7) makes provision for the asylum seeker to re-apply of rejected: “The applicant shall have the right to re-apply to the Minister to reconsider his application and the Minister may, in his discretion on recommendation by the Committee, refer the matter to the Board.” No time limit is set in law.

5.8.2 Administrative assessment of appeals

The Refugee Advisory Board (Section 6) considers re-applications (appeals) which are referred to it by the Minister. It is independent from the first instance authority, but do not have decision making authority. They merely make recommendations to the Minister who has the final say.

5.8.3 Outcome of an appeal decision: what is available to the asylum seeker

In terms of section 7(6) If the Minister decides not to recognize the applicant as a refugee, he shall officially notify the applicant of his decision and reasons for so deciding.

5.8.4 Procedures and standards of appeal hearings or interviews

Although the Act does not clearly stipulate it, Section 7(6) – 7(9) allows for rejected applicants to “re-apply” for refugee status to the Minister, which implies a reconsideration of both fact and law.

Section 7 seems to allow new evidence in that it refers to a re-application instead of a strict appeal or review, but this is not clearly stated in the law.

5.8.5 Period between appeal hearing and final decision

Section 7(8) allows the asylum seeker to remain in the country pending the outcome of the appeal: “Provided that while awaiting the recommendation of the Board to the Minister, the applicant shall be allowed to remain in the country.”

5.9.1 Children

5.9.2 Person with disabilities

5.9.3 Women

5.9.4 LGBTIQ

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

Information relating to the average processing time of refugee applications is not available. UNHCR reported that “The Inter-ministerial RSD Committee has limited capacity to process the current number of asylum applications”

5.10.2 Types of residence offered to refugees by legislation

A refugee has the same residence rights as a non-national with a permit to sojourn indefinitely.

5.10.3 Duration of refugee status

The Refugees Act does not specify that status expires, except in the case of cessation.

5.10.4 Issuance of individual identity documents certifying refugee status

According to section 7(4) of the Refugees Act “every person who is recognised as a refugee shall be duly informed and be issued with an identity card attesting to his status and a resident permit.”

According to Integral Human Development: “UNHCR assists the Lesotho government in documenting their refugees and asylum seekers. For example, in 2018, UNHCR set up a Population Registration and Identity Management Ecosystem (PRIMES), providing refugees and other displaced people with a digital identity that makes easier for them to access digital services.” Family members are also recognised as refugees and issued with ID cards.

5.10.6 The effect of familial changes on an individual’s refugee status

Section 8(2) of the Refugees Act states:

5.11.1 Forms of complementary or temporary protection in legislation

The Refugees Act does allow temporary protection from expulsion pending the outcome of an appeal for refugee status determination (section 7) and against expulsion (section 12). Section 12 (6) states: Where the application against an expulsion order is rejected the refugee shall, unless national security or public order otherwise require and having due regard to all the circumstances of the case, be permitted to remain in Lesotho until such time as his application for legal admission into a country other than Lesotho is successful.

5.12.1 Exclusion

5.12.2 Cancellation

5.12.3 Revocation

5.12.4 Cessation

5.13.1 Process of returning those found not to be in need of international protection

The non-refoulment principle applies to such persons. It seems they are not detained, but given opportunity to obtain legal residence in another country before having to leave the country (section 11 and 12 of the Refugees Act).

5.13.2 Execution of removal orders

No legislation makes provision for removal orders to be shared with affected persons.

5.13.3 Readmission back into the country

There are currently no programs dedicated to readmission back into the country.

6.1.1 Protection against non-discrimination

The Constitution of Lesotho in section 4(1)(n) specifies that “every person in Lesotho has the right to freedom form discrimination. However, in section 18, it says the principle in subsection (1) shall not apply to any law to the extent that that law makes provision--with respect to persons who are not citizens of Lesotho.”

The UN Committee on the Rights of Migrant Workers and Their Families made the following recommendation to Lesotho on non-discrimination in a work related context:

Non-discrimination

23. The Committee notes that, according to the State party, national legislation makes no distinction between national workers and migrant workers except for in respect of “matters of control of non-citizens”. The Committee is concerned, however, about the lack of information on actual practice and of examples that would make it possible to assess the implementation of the right to non-discrimination pursuant to the Convention.

24. The Committee recommends that the State party ensure that all migrant workers and members of their families within its territory or subject to its jurisdiction enjoy, without discrimination, the rights recognized by the Convention, in accordance with article 7 thereof. The Committee also recommends that the State party provide in its next periodic report information on actual practice in this regard, with relevant examples.

The UN Committee on the Rights of Migrant Workers and Their Families made the following recommendation to Lesotho on non-discrimination in a work related context:

Labour exploitation and other forms of ill-treatment

27. The Committee is concerned about the lack of information in the State party report on cases of exploitation of migrant workers in the State party, including those in an irregular situation. Notwithstanding the information provided by the delegation during the dialogue on past incidents of xenophobia, ill-treatment and violence directed at Chinese migrant workers and members of their families, the Committee remains concerned at reports of negative attitudes towards migrant workers of Asian origin and the lack of comprehensive measures to address xenophobia in the State party.

28. The Committee recommends that the State party:

1. Increase labour inspections and prosecute, punish and sanction persons or groups exploiting migrant workers or subjecting them to forced labour and abuse, especially in the informal economy, in line with target 8.8 of the Sustainable Development Goals;

2. Provide specific information in its next periodic report on the exploitation of migrant workers, including those in an irregular situation;

3. Provide data disaggregated by age, sex and nationality on incidents of xenophobia, ill-treatment and violence directed at migrant workers and members of their families, particularly Asian migrant workers;

4. Intensify efforts to combat xenophobia, including by prosecuting perpetrators and conducting awareness-raising campaigns, and provide assistance to victims.

6.2.1 Access to refugee travel documents or passports

Section 6(3) of the Lesotho Passports and Travel Documents Act states “The Minister may issue a Refugee passport to a refugee subject to this Act.”

Section 7(6): A refugee passport may be issued to a refugee who is resident in Lesotho under such terms and conditions as the Minister may prescribe.

Section 8(3): A refugee passport is valid to travel to the country of destination and countries of transit for a period of two years from the date of issue of the passport.

In terms of section 10(2) a refugee requires “(x)a recommendation letter from the Commissioner for refugees where the application is for a refugee passport.”

6.2.2 Limitations on the right to movement

Refugees may move freely. There is no encampment policy. Section 4(1)(c) of the Constitution makes provision for every person to be entitled to freedom of movement. Section 7 of the Constitution provides additional detail on this right and exclusions for non-citizens.

6.2.3 Birth registration and documentation of children of refugees

All children born in Lesotho are required to be registered but the registration rate is low for citizens and non-nationals.

6.2.4 Freedom of religion

The Constitution guarantees the principle of non-discrimination in Section 4 which provides that every person in Lesotho is entitled, whatever his race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status to fundamental human rights and freedoms. The principle of non-discrimination is defined in Section 18 (3) which provides that:

the expression discrimination means affording different treatment to different persons attributable wholly or mainly to their respective description by race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or accorded privileges or advantages which are not accorded to persons of another such description.

Section 35 of the Constitution provides for participation in cultural activities. The non-citizens are free to found and form their associations and celebrate their countries independence as well as carry out their cultural activities and beliefs. Each year, the Government commemorates the international human rights day on 10 December. For example, the Government celebrated the 2009 international human rights day theme “Embrace Diversity: End Discrimination” on two aspects namely: religion and culture. At that occasion, the Chinese were given a platform to perform their religion.

6.2.5 Rights of the Refugee Child

The UN Committee on the Rights of Migrant Workers and Their Families made the following recommendation to Lesotho:

Education

39. The Committee notes that the Education Act of 2010 ensures for every child of school age, including children of migrant workers, the right to free and compulsory access to primary education. However, the Committee regrets the lack of information concerning the general situation of children of migrant workers in the State party with respect to access to education.

40. The Committee recommends that the State party conduct a nationwide study and provide information in the next periodic report on the general situation regarding access to education by children of migrant workers in the State party.

The Children’s Protection and Welfare Act makes no distinction between Basotho and other children.

6.2.6 Refugees rights to secondary and tertiary education

In terms of Section 13(1):

Article 22(1) of the 1951 UN Convention states that refugees should receive treatment at a level that is at least on par with the host country's nationals with respect to elementary education. However, the Article does not define the term "elementary education" which is assumed to be equivalent to "primary education". Article 22(2) provides that, with respect to secondary education, refugees cannot be treated less favourably than aliens who are non-citizens and non-nationals of the host country.

Various reports have highlighted challenges experienced by refugees in getting access to education.

6.2.7 Refugee right to state social assistance

There is no specific provision in any legislation that speaks to social assistance to refugees.

6.2.8 Access to legal assistance

Local laws do not exclude refugees / migrants from legal assistance.

6.2.9 Refugee rights to property

Local laws do not exclude refugees / migrants. Local laws do not exclude refugees / migrants.

6.2.10 Refugee rights to work and conduct business

Refugees can obtain work permits which subsequently allows them to operate business in Lesotho under the current laws.

6.2.11 Refugee rights to financial institutions

Currently refugees have no access to financial institutions in Lesotho.

6.2.12 Labour rights and social security for refugees

Local laws do not exclude refugees / migrants.

6.2.13 Social assistance for refugees with disabilities

Local laws do not exclude refugees / migrants, but little is known in practice.

6.2.14 Duties of a refugee towards host state

The Refugees Act require them to respect the laws of the country.

7.1.1 Administrative and procedural standards for voluntary repatriation

No legal framework sets out rights related to voluntary repatriation.

7.2.1 Progression towards self-reliance for refugees

Refugees require work permits to conduct work in Lesotho. According to Integral Human Development:

Before allowing a foreign migrant to receive a work permit in Lesotho, the National Employment Services needs to verify that no Basotho citizen is qualified for the job. Permanent positions in the public sector are reserved to Basotho nationals only. Intra-regional labour migration is also well established in Southern Africa. Basothoswould leave their country and settle in either South Africa or Botswana, because of the demand for semi-skilled labourers.

7.2.2 Opportunities for naturalization under legislation

The Refugee Act makes provision for the naturalisation of refugees, and requires refugees to be charged minimal fees (section 14).

7.2.3 Opportunities for permanent residency under legislation

A refugee could in principle apply for any permit under the Aliens Control Act, but no specific application is reserved for refugees. The Refugee Act makes provision for naturalisation after 5 years of residence. These are the requirements in terms of the schedule:

Section 38 of the Aliens Control Act makes provision for the following in relation to refugees:

Saving as to refugees.

1. If any international treaty or convention relating to refugees is or has been acceded to by or has been acceded to by or on behalf of the Government of Lesotho, an alien is a refugee within the meaning of such a treaty or convention shall not be refused entry into or sojourn in Lesotho, and shall not be expelled 33 from Lesotho in pursuance of the provisions of this Act except with his consent or except to the extend that is permitted by that treaty or convention, subject to any reservation that may be in force at the material time.

2. If any questions arises - (a) whether an alien is a refugee; (b) whether any provision of an international treaty or convention relating to refugees, applies to that alien; and (c) whether the expulsion of that alien from Lesotho is permitted by that treaty or convention, the High Court may on the application of that alien declare that he is a refugee, that the provision of the international treaty or convention applies to him, and may declare that his expulsion from Lesotho is, or is not, permitted by that treaty or convention, or may decline to make any such declaration.

3. The provisions of this subsection and the Fourth Schedule shall apply to an alien who claims to be a refugee and who by reason of that claim applies for special privileges of sojourn in Lesotho without authority or permission under the other provisions of this Act for his entry or sojourn. For so long as a provisional authority or Proclamation is in force under the Fourth Schedule, the alien to whom it refers may subject to the conditions thereof, sojourn in Lesotho.

7.2.4 Availability to access active migration or skilled entry schemes

There are no schemes in this regard available to refugees, however they are able to (and required to) obtain work permits in order to work.

7.2.5 Recognition of academic, professional, and vocational diplomas and certificates acquired by refugees in their country of origin

According to Integral Human Development:

The last available displacement data for Lesotho was recorded in 2018. At the time, a total of 1,400 internally displaced persons (IDPs) were mentioned as being displaced due to natural disasters. These included flash floods, hailstorms, and heavy rains recorded in March 2018. In 2019, the UNHCR data reported that there were 106 refugees and asylum seekers in Lesotho. Approximately 80% of the 106 were from the Democratic Republic of the Congo (DRC), and the remaining 20% were refugees from Ethiopia, Eritrea, and Uganda. In 2020, the number of forced migrants in Lesotho increased to 281. In that same year, 168 asylum applications were processed by the local government and had a 100% success rate, with most applications being lodged by DRC migrants. Close to 40% of refugees are asylum seekers and children, who are able to enjoy the right and access to basic health care and education. Unemployed refugees receive a government grant of M400 per month (approximately US $28), and the Lesotho government has also initiated to provide housing, water, and electricity to refugees at no cost to them. Once a work permit has been obtained, they are able to seek employment. However, there are challenges when it comes to education and the provision of travel documentation, as refugees have often complained, lamenting the fact that they are experiencing discrimination when they are trying to access these services.

7.2.6 Inclusion of refugees in national development plans

Refugees are included in some of the national development plans. This can be seen in the migration sections in the National Development Plan.

7.2.7 Empowerment of refugee women

There are general initiatives which promote empowerment amongst women in Lesotho, such as the job creation initiatives reported on by the UNDP.