2.1.1 Instruments that the state has currently acceded to/ratified:

- The 1951 UN Convention Relating to the Status of Refugees (acceded to on 17 February 1995)

- The 1967 UN Protocol Relating to the Status of Refugees

- The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (signed 11 November 2009)

2.1.2 Current reservations made

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.

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

• Namibia Refugees (Recognition and Control) Act, 1999.
• Regulations thereto: Namibia Refugees (Recognition and Control) Regulations Government Notice 236 of 2000.
• Immigration Control Act, 1993.
• Regulations thereto: Immigration Regulations Government Notice 134 of 1994.
• Departure from Namibia Regulation Act, 1955 (please note this statute has been earmarked for repeal and replacement).
• Namibian Citizenship Act, 1990.
• Regulations thereto: Regulations made in terms of Namibian Citizenship Act 14 of 1990 section 28.
• Namibian Citizenship Special Conferment Act, 1991. No regulations thereto.
• Namibian Citizenship (Second) Special Conferment Act, 2015. Promulgation of regulations authorised by the Act but has not been done.
• Departure from Namibia Act Regulation Act, 1955.
• One-Stop Border Posts Control Act, 2017. Promulgation of regulations authorised by the Act but has not been done.
• Child Care and Child Protection Act, 2015.
• Regulations thereto: Child Care and Protection Regulations, 2019.
• The Combating of Trafficking in Persons Act, 2018.

2.2.2 List of major judicial decisions related to asylum and refugee protection:

• Government of the Republic of Namibia v Sikunda 2002 NR 203 (SC) (appeal decision).
• S v Isaac 2004 NR 122 (HC).
• Zhu v Minister of Home Affairs & Another 2004 NR 170 (HC) (deportation cannot be imminent without a directive from an immigration tribunal).
• S v Mushwena & Others 2004 NR 276 (SC) (refers to the “Convention relating to the Status of Refugees and Stateless Persons as Supplemented by the Protocol relating to the Status of Refugees” and the OAU Convention governing the Specific Aspects of Refugee Problems in Africa).
• Namrights Inc v Nicodemus & Others 2016 (2) NR 596 (LC) (section 18; UN Convention Relating to the Status of Refugees, Articles 2 and 26).
• S v Munuma & Others 2016 (4) NR 954 (SC) (inapplicability of sections 7 and 9 to persons involuntarily deported back to Namibia).

2.2.3 List of strategies and action plans related to asylum, refugee protection, and migration:

• National Labour Migration Policy.
• Draft National Migration Policy. The draft could not be located but is referred to here:
• National Action Plan to End Statelessness (referenced by UNHCR)

Refugee

Defined in Refugees Act:

Asylum seeker

Not defined in Refugees Act or related regulations.

Child

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

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:

Separated child

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

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:

Victim of trafficking

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

Stateless person

Currently there is no definition of ‘stateless person’ or ‘statelessness’ in the Namibian Citizenship Act, 1990 , however, it does refer to statelessness.

Returnee

No definition contained in the legislation or regulations.

Common refugee elements defined in national law

Currently there are other common groupings within the refugee and asylum communities that are not yet defined under Namibian law. These include, stateless persons, separated children and asylum seekers.

This lack of definition of groups such as ‘asylum seeker’, ‘separated child’ and ‘stateless person’ may make identifying those who may fall into these categories under international law difficult and as such also make finding solutions and remedies challenging.

3.1.1 The principle of non-refoulment in the national context

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

However, 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.”

3.2.1 National Laws and regulations regarding entry of asylum seekers

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.

3.2.2 Limitations on access to asylum during periods of National Emergency

Article 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 article 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”). 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.” 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".

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.”

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.”

4.1.1 Access to reception facilities for asylum seekers

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. 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.

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

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

4.2.1 Detention of asylum seekers

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.

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

4.2.2 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 Detention conditions set out in the laws and regulations

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.

4.3.1 Social and legal assistance offered to asylum seekers

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.

It should also be noted that the above mentioned assistance is often free of charge.

4.4.1 Right to Family Unity

Namibia’s laws recognize the right to family unity. 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:

In terms of children and family unity, 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.

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

4.4.3 Access to UNHCR facilities for asylum seekers

Currently the laws of Namibia do not explicitly state that the government must provide or facilitate access to the UNHCR for those seeking asylum in the country. 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.¹

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

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 Registration of births and documentation among asylum seeker 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

5. 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.

2. 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.

5.1.1 Reception official at first instance

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.

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.

The Refugee Act does not specify whether border officials should register asylum claims or if they are required to refer a person seeking asylum to the designated authorities. 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.

5.1.2 Procedural and legal guidance and assistance offered to asylum seekers

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.

Currently Namibian laws do not create any requirement for personal interview reports and related information to be given to an asylum-seeker that may request it, even if it is with the hopes of avoiding any misunderstandings or to clarify any possible contradictions.

5.1.3 Availability of Legal Aid

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.

5.2.1 Confidentiality of personal information and data

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).

In terms of any duties of confidentiality from the side of reception staff as well as other related staff (e.g. border guards, counsellors, interpreters, legal advisers and medical practitioners) there is nothing in the Refugees Act or its regulations, nor any data protection legislation that would create that obligation indirectly.

5.3.1 Registration of family members of registered asylum seekers

In terms of Namibian law family members of an asylum seeker 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

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 document substantially in the form as set out in the Annexure B.

2. 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

5. 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.

All family members accompanying them registered and issued with appropriate individual documentation, which reflects their status as asylum-seeker and remains valid until the final decision of their asylum application:

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 document substantially in the form as set out in the Annexure B.

2. 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.

5.3.2 Obstacles to applying for asylum while in detention

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). The Regulations only state 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 Making a claim for asylum at the border

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.

5.3.4 Necessity of travel or identity documents for concerned persons

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.

5.3.5 Challenges for individual asylum seeker claims for females

Nothing in the Act or Regulations specifies that female asylum seekers accompanying adult male relatives are to be informed, in private and in a language that they understand, that they have a right to make an independent application for asylum on their own claim. 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

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 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.

5.5.1 Standard of credibility for an asylum claim

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

5.5.2 Provisions and standards for decision makers

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):

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

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.

5.6.1 Interview and decision making process at first instance

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

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.

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.

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

Decision makers have access to country of origin information.

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

The national laws do not provide for this.

5.8.1 Asylum seekers right to appeal decisions

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

5.8.2 Administrative assessment of appeals

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

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 Procedures and standards of appeal hearings or interviews

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.

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:

5.8.5 Period between appeal hearing and final decision

In the interim period between the appeal hearing and the release of the final decision, the appeal will 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.

5.9.1 Children

5.9.2 Person with disabilities

5.9.10 Women

5.9.11 LGBTIQ

5.10.1 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 Types of residence offered to refugees by legislation

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 Duration of refugee status

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 Issuance of individual identity documents certifying refugee status

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

5. 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 Issuing of identity documents to family members of refugees

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

5. 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.

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

In terms of a change in the family dynamic (e.g. through death or divorce), 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:

5.11.1 Forms of complementary or temporary protection in legislation

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:

5.12.1 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

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.

5.13.2 Execution of removal orders

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 Readmission back into the country

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

6.1.1 Protection against non-discrimination

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:

6.2.1 Access to refugee travel documents or passports

Refugees have a right to apply for travel documents, however do not receive them automatically by virtue of becoming refugees.

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 Limitations on the right to movement

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."

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.”

It should also be noted that the government requires authorisation, by way of an exit permit, to depart the country.

6.2.3 Recognition of family unity under national law and regulations

Under the national law 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:

6.2.4 Birth registration and documentation of children of refugees

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:

6.2.5 Freedom of religion

National 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.

6.2.6 Rights of the Refugee Child

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:

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.

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.

6.2.7 Refugee right to state social assistance

Refugees do have a right to access to public relief and social assistance.

Currently there is 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.

6.2.8 Access to legal assistance afforded to refugees

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.

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.

6.2.9 Refugee rights to 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.

6.2.10 Refugee rights to work and conduct 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.

3. 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.

6.2.11 Refugee rights to financial institutions

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. They do not specify that as part of the strategy refugees and asylum seekers will be included into any efforts to ensure financial inclusion.

6.2.12 Labour rights and social security for refugees

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.

6.2.13 Duties of a refugee towards host state

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

7.1.1 Administrative and procedural standards for 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.

It should also be noted that refugees departing the country will also need to acquire an exit visa before leaving.

In terms of the law when repatriation occurs the family unit must be preserved.

7.1.2 Voluntary repatriation in terms of especially vulnerable peoples

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.

7.1.3 Voluntary repatriation in terms of unaccompanied or separated children

7.1.4 Access to country of origin information for refugees undergoing voluntary repatriation

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.

7.2.1 Progression towards self-reliance for refugees

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

13. 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.

It should be noted that currently refugees are not included in any national development plans set by the Namibian government.

7.2.2 Opportunities for naturalization under legislation

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).

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 Opportunities for permanent residency under legislation

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.

7.2.4 Availability to access active migration or skilled entry schemes

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

7.2.5 Recognition of 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.

7.2.8 Empowerment of refugee women

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