Instruments that the state has currently acceded to/ratified

Zambia acceded to:

• The 1951 UN Convention Relating to the Status of Refugees

• The 1967 UN Protocol Relating to the Status of Refugees (acceded to in 1969) and ratified

• The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (ratified in 1973).

2.1.2 Current reservations made:

• The Zambian Government has made reservations to the 1951 UN Convention Relating to the Status of Refugees regarding the rights to education (Article 22.1), employment (Article 17.2), freedom of movement (Article 26), and the provision of travel documents (Article 28).
• The Government’s reservation to Article 26 on freedom of movement in the 1951 UN Convention has been domesticated into an encampment policy that requires refugees to reside in one of the designated refugee settlements unless they qualify for a permit to reside in urban areas. Although the Government of Zambia made reservation to Article 22 of the 1951 Convention in relation to access to education, in practice, the Zambian government allows all refugee children in Zambia to access primary and secondary education equally to nationals.

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

• The Constitution of Zambia (Amendment) Act 2 of 2016 is the supreme law and guiding framework. The Bill of Rights is enshrined in Part V of the Constitution.
• The Refugees (Control) Act 40 of 1970. This Act has been repealed and replaced by The Refugees Act 1 of 2017.
• The Refugees Act 1 of 2017, repeals and replaces the Refugees (Control) Act of 1970. The Refugees Act provides for the establishment of the Commissioner for Refugees (COR) and its functions; the recognition, protection and control of refugees; and the rights and responsibilities of refugees, among others. The COR keeps records of all registered asylum seekers and refugees in the country and has a comprehensive database of all such persons in the country at any given time. Although no policy has been developed to operationalise the new Refugees Act^, it is progressive and offers opportunities for the improvement of asylum in Zambia, specifically relating to livelihood and self-reliance opportunities.
• Immigration and Deportation Act of 1965 amended by Immigration and Deportation (Amendment) Regulations of 1994.
• Immigration and Deportation Act 18 of 2010, empowers the Department of Immigration to perform immigration control functions, including regulating migrants who enter, stay within, and exit Zambia. The Act also relates to asylum seekers. This has been amended by the Immigration and Deportation (Amendment) Act of 2016.
• Border Management and Trade Facilitation Act 12 of 2018.
• The Children’s Code Act 12 of 2022.
• Prisons Amendment Act Act 16 of 2004 provides for the establishment of prisons and for the management and control of prisons and prisoners lodged therein.
• Passport Act 28 of 2016.
• National Registration Act 19 of 1964.
• The Citizenship of Zambia Act 33 of 2016.
• Anti-Human Trafficking Act 11 of 2008 provides for the prohibition, prevention and prosecution of human trafficking; and for filing of and dealing with matters related to human trafficking. Among other things, it stipulates that no victim shall be repatriated without giving consideration to care and safety arrangements in the country to which the victim is returned.
• Employment Code Act 3 of 2019 regulates the employment of persons, provides for employment policies, procedures and codes in an undertaking, and prohibits the employment of non-citizens, amongst other things.
• Juveniles Act 276 of 1964 makes provision for the custody and protection of juveniles in need of care; the correction of juvenile delinquents; and any other matters incidental to or connected with the foregoing. The Act defines a juvenile as a person who has not attained the age of 19 years; and includes a child and a young person. This statute applies to migrant children, especially unaccompanied and separated migrant children who become wards of the State and need State protection while in the country. The Act was amended in 2011 with the Juveniles (Amendment) Act, 2011.
• Legal Aid Act 20 of 1967(repealed), which is now Chapter 34 of the Laws of Zambia.
• Legal Aid Act 1 of 2021

• E-services User Guide is an online portal for all immigration services that allows individuals to open an account and get secure, controlled access to visa and permit applications. Using the e-Services, the applicants (or their agents) are be able to find a specific e-visa or e-permit service, including initial application or variations, and complete an application form, with some profile data being automatically pre-filled upon their authentication.
• Guide on Immigration Permits and Visas (requirements and fees) serves as a guide designed to assist individuals when completing their applications for various immigration permits and visas.
• Guidelines for Best Interests Determination for Vulnerable Child Migrants in Zambia, 2018 were developed for the purpose of establishing a formalized procedure for dealing with vulnerable children. The Guidelines apply to vulnerable child migrants in Zambia, including (but not limited to) actual, presumed and potential child victims of trafficking, unaccompanied and separated migrant children, asylum seekers, refugee children, stateless children and stranded children. The Guidelines outline the different needs of child migrants at different stages of the migration process, in accordance with the National Referral Mechanism (NRM) and the international, regional, and national minimum standards.

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

• Stickrose (PTY) Ltd v Permanent Secretary and Anor (SCZ 30 of 1999) [1999] ZMSC 56 (2 September 1999)
• Stickrose (Pty) Limited v Permanent Secretary Ministry of Finance (SCZ 30 of 1999) [1999] ZMSC 48 (1 September 1999)
• People v Musengule and Another (HPA 16 of 2009) [2012] ZMHC 6 (15 March 2012)
• Banda and Phiri v Siliya (HP/EP 11 of 2011; HP/EP 39 of 2011) [2012] ZMHC 89 (12 April 2012)
• Base Chemicals v Zambia Air Force (SCZ 9 of 2011) [2011] ZMSC 9 (26 April 2011)
• Barclays Bank v ERZ Holdings Ltd & Others (Appeal 71 of 2007) [2012] ZMSC 14 (19 February 2012)
• People v Musonda and Others (HW 8 of 2012) [2012] ZMHC 30 (25 April 2012)
• Kalenga & Others v The People (Appeal 116 of 2010) [2014] ZMSC 4 (8 April 2014)
• Loongo v Loongo and Shafwamba and Others (HP 973 of 2006) [2012] ZMHC 20 (5 March 2012)
• Chiseke v Simbula and Attorney General (Appeal 223 of 2012) [2014] ZMSC 47 (18 May 2014)
• Mulumbilwa and Ors v People (Appeal 154 of 2018) [2019] ZMCA 292 (28 June 2019)
• Martin Chitondo & Others v The Attorney General (2 of 2019) [2019] ZMCC 5 (17 May 2019)
• Access Bank Zambia Limited v Attorney-General (9 of 2018) [2019] ZMCC 21 (27 March 2019)
• Piema Marcel Mingashanga v C.K Marble Limited & 5 Others (HP 1768 of 2013) [2020] ZMHC 68 (17 February 2020)
• Rephidim Institute Ltd v Attorney General (APPEAL NO. 256 OF 2020) [2023] ZMCA 159 (8 June 2023)
• Mushitu v Kaumba (Appeal 122 of 2015) [2018] ZMSC 596 (20 November 2018)
• Levy Ndalunga v People (Appeal 3 of 2019) [2019] ZMSC 354 (19 August 2019)
• Mwanza and Anor v The Attorney General (2023/CCZ/005) [2023] ZMCC 10 (19 September 2023)
• Phiri v Ackleo IA and Anor (HP 37 of 2021) [2021] ZMHC 40 (23 November 2021)
• In Re Chirwa [1974] ZMHC 1 (2 January 1974)
• Radebe v The Attorney General (1972).
• Chipango v The Attorney General (1972 ZR)
• Mifiboshe Walulya v The Attorney General 1984 ZR 89.

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

• Migration Policy Framework for Africa and Plan of Action (MPFA) (2018–2030) takes into account African Union priorities and policies, the Agenda 2063, the SDGs, and international migration management policies and standards. It provides Member States and regional economic communities (RECs) with comprehensive policy guidelines and principles to assist them in the formulation and implementation of their own national and regional migration policies in accordance with their priorities and resources. The MPFA identifies eight key pillars, namely migration governance, labour migration and education, diaspora engagement, border governance, irregular migration, forced displacement, internal migration, and migration and trade.
• Comprehensive Refugee Response Framework (CRRF): in November 2017, the Government of Zambia declared its interest in becoming a CRRF roll-out country piloting the CRRF approach in its response to the Congolese emergency and adopting a whole of society approach to increase the self-reliance of refugees. The Government of Zambia designed a national roadmap for the application of a comprehensive refugee response in 2018 with the priority areas being admission and rights, emergency preparedness, inclusion, self-reliance.
• Local Integration Programme: in 2011, the Zambia Government invoked the cessation clause resulting in the cessation of refugee status of Rwandan and Angolan refugees. Many of the Angolan refugees were either born in Zambia or had lived in the country for decades and thereby established roots and acquired the local language. In recognition of this situation, the Government of Zambia pledged in 2011 to locally integrate some 10,000 Angolan refugees who had settled in Zambia. The government further decided that it would implement the legal integration pledge by creating mixed communities of former Angolan refugees and Zambians. The Strategic Framework was developed focusing on three main pillars, namely alternative legal status pillar, integrated resettlement program (economic and socio-economic pillars), and refugee-affected areas.
• National Social Protection Policy includes migrants among the vulnerable groups of people who need protection. It recognizes that vulnerable people ought to get a minimum amount of financial aid to meet basic necessities such as food, clothes, medicines and services including health care.
• National Policy on Human Trafficking and Smuggling of Migrants, Implementation Plan 2022 seeks to eradicate all forms of human trafficking from, through, to and within Zambia while providing efficient, adequate, and appropriate protection and support to trafficked.
• Guidelines for Protection Assistance to Vulnerable Migrants in Zambia, 2014 were developed to facilitate capacity-building of first-line officials to establish and/or implement “protection-sensitive processes, procedures and systems”, with the aim of effectively responding to the protection needs of vulnerable migrants in Zambia. These are complimented by the National Referral Mechanism, profiling forms and trainers manuals/handbooks.
• National Action Plan on Addressing Mixed and Irregular Migration in Zambia, 2014 - 2019 is a comprehensive action plan that identifies and maps out various stakeholders in a bid to address mixed and irregular migration in Zambia. It aims to strengthen national cooperation and coordination on addressing irregular and mixed migration; to improve protection of unaccompanied, separated and other vulnerable migrant children; to reduce the detention of migrants and explore alternatives to detention; and to provide an appropriate legal framework to address the challenges of statelessness in Zambia.

Refugee

The definition is contained in section 2 of the Refugees Act 2017, which is aligned with the 1951 UN and the 1969 OAU Conventions definition.

Asylum seeker

The definition is contained in section 2 of the Refugees Act 2017.

Child

The definition is contained in section 2 of the Refugees Act 2017 and section 2 of the Immigration and Deportation Amendment Act 2010 and states that a “child” has the meaning assigned to it in the Zambian Constitution. In terms of section 266 of the Constitution, a “child” is defined as “a person who has attained, or is below, the age of eighteen years.”

Unaccompanied and/or separated child

Zambian laws do not define what an unaccompanied and/or separated child is. However, Zambia has also ratified the UN Convention on the Rights of the Child. The Convention on the Rights of the Child General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children outside of their Country of Origin defines “unaccompanied children” as children “who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so”.

General Comment No. 6 (2005) further defines “separated children” as those “who have been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. These may, therefore, include children accompanied by other adult family members.”

Additionally, the 2014 Guidelines for Protection Assistance to Vulnerable Migrants in Zambia defines unaccompanied and/or separated child as “[c]hildren, as defined in Article 1 of the Convention on the Rights of the Child who have been separated from one and/or both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.”

Family

There is no definition provided for in terms of the Zambian Refugees Act 2017 or Immigration and Deportation Act. However, “immediate family” is defined in terms of section 2 of the Immigration and Deportation Act and means “husband, wife, or child”.

Victim of trafficking

The definition of “victim” is contained in section 2 of the Anti-Human Trafficking Act 11 of 2008:

“a person who has suffered harm, including mental and physical injury, emotional suffering, economic loss or substantial impairment of the person’s fundamental human rights through acts that are a violation of this Act”.

Stateless person

Zambia doesn’t currently have any domestic laws in place for the protection of stateless persons and there is no legal definition of a stateless person contained in Zambian law. However, Zambia did accede to the 1954 Convention relating to the Status of Stateless Persons in 1974. Article 1 of the 1954 Convention defines stateless person as “a person who is not considered as a national by any State under the operation of its law.”

Returnee

There is no definition contained in Zambian law.

3.1.1 The principle of non-refoulment in the national context

Section 23 of the Refugees Act 2017 incorporates the principle of non-refoulement albeit limited. Section 23 states that a person shall not be refused entry into Zambia or be expelled, extradited, or returned from Zambia to another country if that refusal, expulsion, or return would compel that person to return to or remain in a country where they may be subjected to persecution or that person’s life, physical well-being or liberty is threatened by external aggression, occupation, foreign domination or event seriously disrupting public order in part or the whole of that country.

In terms of section 23(3) of the Refugees Act 2017, an asylum seeker or refugee will not benefit from this provision where there are reasonable grounds to believe that the asylum seeker or refugee is a danger or threat to national security.

3.2.1 National Laws and regulations regarding entry of asylum seekers

Section 11, 12, and 21 to 30 of the Immigration and Deportation Act regulates the entry and remaining in Zambia of those persons who enter the country for reasons not related to seeking asylum or international protection. Section 31 of the Immigration and Deportation Act set out the procedure for accessing the Zambian teritory through a port of entry if that person claims to be an asylum seeker.

3.2.2 Limitations on access to asylum during periods of National Emergency

Despite restrictions on movement in the month of March 2020 and onwards to limit the potential spread of Covid-19, the Government of Zambia maintained access to asylum in Zambia allowing new arrivals to enter the country and apply for asylum. Restrictions were placed on movement from areas of arrival into the refugee settlements, with new arrivals relocating to one of the three settlements only after periods of screening and quarantine.

The Government of Zambia with support from the UNHCR ensured that entrances to the refugee settlements, as well as the Makeni transit centre in Lusaka, were equipped with thermometers to conduct entry screenings. Isolation units and quarantine centres were also established in the three refugee settlements for possible COVID-19 cases. Isolation units were also set up to isolate and accommodate potential suspected cases until they were transferred to the government-designated isolation and treatment centres in keeping with the national policy. The quarantine centres accommodated asylum-seekers who arrived directly from border entry points or transferred from other reception centres.

4.1.1 Access to reception facilities for asylum seekers

The Refugees Act 2017 and the Immigration and Deportation Act 2010 entitle asylum seekers to access reception facilities.

Section 9 of the Refugees Act 2017 states that the Minister may by Government Gazette designate refugee reception areas and refugee settlements, respectively. Refugee reception areas receive asylum seekers and persons who have applied for recognition as refugees under section 11 of the Refugees Act 2017.

Refugee Reception Areas (also known as transit centres) have been established in the seven border cross points. These locations are Mpulungu, Nsumbu, and Kaputa in Northern Province, Chienge, Kenani, and Nchelenge in Luapula Province, and Kipushi and Kakoma in North-western Province.

The Refugee Reception Areas located in the Northern, Luapula, and North-Western Province are accessible particularly for those crossing via a formal border post between Zambia and the Democratic Republic of Congo and Zambia and Tanzania. Access will be geographically limited for those asylum seekers who enter Zambia from other neighbouring countries, specifically Angola, Mozambique, and Zimbabwe as they will have to travel some distance before reaching a transit centre.

In terms of section 31 of the Immigration and Deportation Act 2010, an immigration officer may issue an asylum seeker’s permit to any person seeking asylum in Zambia upon their entry into the country in accordance with the Refugees Act 2017 so as to allow them to lodge an application for refugee recognition, which must be done within 7 days of entry into Zambia.

An asylum seeker’s permit will be valid for a period not exceeding 30 days. After the expiry of the 30 days, the holder must have reported to the Commissioner for Refugees or a refugee settlement as provided for under the Refugees Act 2017 or that holder of the permit will become an “illegal immigrant”.

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

Section 4 of the Refugees Act states that the Commissioner for Refugees is responsible for the recognition of refugees and ensuring the provision of adequate facilities and services for the reception into and care for refugees within Zambia. Subsection (1)(k), states that the Commissioner must protect and assist vulnerable asylum seekers and refugees, especially women and children.

Section 54 of the Refugees Act, provides for vulnerable groups, including asylum seekers with physical or mental disabilities. The Act states that the Commissioner must ensure that measures are taken, having regard to the specific nature of every situation, to ensure the safety of asylum seekers and refugees who are vulnerable at all times during admission into and residence in refugee reception areas or refugee settlements.

4.2.1 Detention of asylum seekers

Notwithstanding an intention to seek asylum, illegal entry in Zambia is an offence under the Immigration and Deportation Act 2010, which may result in detention.

In addition, asylum seekers and refugees may be subject to a penalty of detention for contraveining the Refugees Act 2017, including any refugee found in any place other than a refugee settlement without a valid pass or permit would have committed an offence and therefore liable for detention.

Section 22 of the Refugees Act 2017 provides for the detention of refugees pending expulsion from Zambia. Section 22(1) of the Refugees Act 2017, states that an authorised officer may arrest and detain a recognised refugee whose expulsion has been ordered under section 21 of the Refugees Act 2017, pending the completion of arrangements for the expulsion of that recognised refugee from Zambia.

4.2.2 Detention of Children

The Juvenile’s Act authorises the detention of children. In terms of the Act, a juvenile is defined as a person who has not yet attained the age of 19 years and includes a child and a young person.

4.2.2 Detention conditions set out in the laws and regulations

Section 23(6) of the Refugees Act defines “correctional centre” as a “building, enclosure or place or part of the building, enclosure or place declared to be a correctional facility in the law relating to prisoners, and includes a correctional centre established for children in conflict with the law.”

Section 22(3) of the Refugees Act 2017 states that a recognised refugee who is detained in terms of section 22 at a correctional centre or police station under this section shall be treated as a person awaiting trial. Consequently, refugees and asylum seekers who are detained will be held in correctional centres or police stations together with those that have been criminally charged / unconvicted prisoners.

Furthermore, the Constitution of Zambia and the other legislation regulating the criminal justice system provides a framework for regulating pre- trial detention and fair-trial rights. The legislation provides for bail, due process guarantees, the right to be informed of the reasons for arrest and compensation for unlawful arrest, the right to be brought before court within 24 hours, the right to be tried within a reasonable time by a competenent tribunal or authority; the presumption of innocence, access to legal representation, and the general rights to liberty and security of the person.

4.3.1 Social and legal assistance offered to asylum seekers

If a civil prisoner or an unconvicted prisoner does not provide himself with food and clothing, he shall receive the normal prison food, clothing and other necessaries.

In terms of the Legal Aid Act 20 of 1967, which is now Chapter 34 of the Laws of Zambia, whenever any court commits a person for trial before the High Court or appears in the lower courts and the court considers that the accused has insufficient means to enable him to engage a practitioner to represent him, the committing court shall issue a legal aid certificate. If an accused person before the High Court is unrepresented by a practitioner and the Court considers that there is insufficient reason why the accused should not be granted legal aid, the Court may issue a legal aid certificate.

In civil matters where the State is a party, if it is in the interests of justice, legal aid will be provided.

In terms of the Refugees Act 2017, only a recognised refugee has free access to the courts and will enjoy the same treatment as a citizen in matters pertaining to access to the courts, including legal aid and exemption from the payment of security for costs.

In criminal matters, legal aid is free in terms of section 8 and 9 of the Legal Aid Act 20 of 1967.

In civil matters where the State is a party, if it is in the interests of justice, legal aid will be provided free of charge.

4.4.1 Right to Family Unity

Family Unity is not mentioned in the Refugees Act or the Children’s Code. However, section 2 of the Refugees Act provides for a very generous and inclusive definition of dependents. In terms of the Act, “dependent” in relation to a refugee, means a spouse, parent or grandparent of the refugee; or a son, daughter, grandson or granddaughter, brother, sister, nephew or niece of the refugee who is of, or below, the age of eighteen or is below the age of twenty-five and undergoing full time education and is wholly dependent on the refugee.

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

The Refugees Act does not provide for the rights of asylum seekers. However, the Commissioner is responsible for the recognition of refugees and ensuring the provision of adequate facilities and services for the reception into and care for refugees within Zambia. This includes ensuring treatment of asylum seekers and refugees in compliance with the law.

The right not to be deported to your country of origin or other country where you fear persecution or similar human rights violations.

The right to be united with your family, specifically for children.

The right to humane standards of treatment as per the Bill of Rights. The Constitution also made clear that the rights and values apply to everyone. Article 1 of the Constitution states that “The Constitution shall bind all persons in Zambia, State organs and state institutions.”

4.4.3 Access to UNHCR facilities for asylum seekers

The Refugees Act 2017 provides for the right to access the UNHCR in the context of seeking assistance for the purpose of making written representations to the Minister against the expulsion of a recognised refugee from Zambia.

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

The best interests of the child principle was recently codified in section 3 of the Children’s Code 2022, which states that “a child’s best interest is the primary consideration in a matter or action concerning the child, whether undertaken by a public or private body” and that the best interests of the child is the first and paramount consideration.

No clear procedure is set out to determine the best interests of the child in the Children’s Code 2022 however, section 3(2)(a) – (k) does provides for a number of considerations that a court, an administrative institution, or an authorised officer must consider when determining the best interests of a child.

With regards to migrant children, procedures for the determination of the best interests of the child are set out in the “Guidelines for best interests determination for vulnerable child migrants in Zambia.” These guidelines were developed by the Zambian Ministry of Community Development and Social Services together with civil society and the International Organization for Migration.

The Guidelines emphasise that the concept of the child's best interests is a rule of procedure, and a formal process with strict procedural safeguards, designed to assess and determine the child’s best interests for decisions affecting the child, including mechanisms for evaluating the results. Public authorities and organizations making decisions must therefore act in conformity with the obligation to assess and determine the child's best interests. To ensure that the best interests of the child are taken into account as a primary consideration there must be child-friendly, transparent, and objective procedural safeguards and processes.

The procedures to determine children's best interests as contained in the Guidelines are:

1. Right of the child to express his/her own views

   • Ensure meaningful child participation in identifying the child’s best interests.
   • Inform the child about the process and possible sustainable solutions and services.
   • Collect information from the child and seek their views.
   • Where the child’s views are expressed through a representative, there is an obligation to accurately communicate the views of the child. Where the child’s views are in conflict with those of his/her representative, a procedure should be established to allow the child to approach an authority to establish separate representation for them, such as a guardian ad litem, if necessary.

2. Establishment of facts

   • Facts and information relevant to a particular case must be obtained by well-trained professionals, in order to draw up all the elements necessary for Best Insterests Assessment.
   • Persons who should be interviewed to establish facts may include those close to the child, people who are in contact with the child on a daily basis, and witnesses to certain incidents.
   • Information gathered must be verified and analysed prior to being used in the child’s Best Interests Assessment.

3. Perception of time

   • Delays in or prolonged decision-making have particularly adverse effects on children as they evolve.
   • Therefore procedures or processes regarding or impacting children must be prioritized and completed in the shortest time possible because the passing of time is not perceived in the same way by children when compared to adults.
   • The timing of the decision should, as far as possible, correspond to the child’s perception of how it can benefit them, and the decisions taken should be reviewed at reasonable intervals as the child develops and their capacity to express their views evolves.
   • All decisions on care, treatment, placement, and other measures concerning the child must be reviewed periodically in terms of their perception of time, and their evolving capacities and development.

4. Qualified professionals

   • Given that children are a diverse group, with each having their own characteristics and needs, the assessment and determination of children’s best interests should adequately be made by professionals who have expertise in matters related to child and adolescent development.
   • The formal assessment process should be carried out in an objective manner, and in friendly and safe atmosphere, by professionals trained in, inter alia, child psychology, child development, and other relevant human and social development fields (e.g. law, sociology, education, social work and health), and who have experience working with children.
   • As far as possible, a multidisciplinary team of professionals should be involved in conducting the Best Interests Determination.

5. Legal representation

   • The child needs appropriate legal representation when his/her best interests are to be formally assessed and determined by courts and equivalent bodies.
   • In particular, in cases where a child is referred to an administrative or judicial procedure involving the determination of their best interests, their should be provided with a legal representative, in addition to a guardian or representative of their views.

6. Legal reasoning

   • In order to demonstrate that the right of the child to have their best interests assessed and taken as a primary consideration has been respected, any decision concerning the child must be motivated, justified and explained.
   • The motivation should explicitly state all the factual circumstances regarding the child, what elements have been found relevant in the best interests assessment, the content of the elements in the individual case, and how they have been weighted to determine the child’s best interests.
   • If the decision differs from the views of the child, the reason for it should be clearly stated. If, exceptionally, the solution chosen is not in the best interests of the child, the grounds for this must be set out, in order to show that the child’s best interests were a primary consideration despite the result.
   • It is not sufficient to state in general terms that other considerations override the best interests of the child. All considerations must be explicitly specified in relation to the case at hand, and the reason why they carry greater weight in the particular case must be explained.
   • The reasoning must also demonstrate, in a credible manner, why the best interests of the child were not strong enough to be outweighed by the other considerations.

7. Mechanisms to review or revise decisions

   • Mechanisms to review decisions concerning children when a decision seems not to be in accordance with the appropriate
   • Best Interests Assessment and Best Interesrt Determination procedures must be established within the system.
   • There should always be the possibility to request a review or to appeal such a decision at the national level.
   • Mechanisms should be made known to the child and be accessible by him/her directly or by their legal representative.
   • The reviewing body must look into the aforementioned aspects.
   • The reviewing body must look into whether: procedural safeguards had not been respected; the facts are inaccurate; the best interests assessment had not been adequately carried out; or that competing considerations had been given too much weight.

8. Child rights impact assessment (CRIA)

   • Child rights impact assessment (CRIA) should be used to predict the impact of any proposed policy, legislation, regulation, budget or other administrative decision that will affect a child or children, including by affecting their enjoyment of their rights.
   • CRIA should complement ongoing monitoring and evaluation of the impact of measures on children’s rights.
   • CRIA needs to be built into processes at all levels and as early as possible in decision-making and in the development of implementation measures.

Different methodologies and practices may be developed when undertaking CRIA. At a minimum, they must use the UNCRC and its Optional Protocols as a framework, in particular ensuring that the assessment is in line with the general principles and having a special regard for the differentiated impact of the measure(s) under consideration on children.

The Guidelines further indicate that the structure of the National Best Interests Determination must consist of respresentives from the Department of Social Welfare, Zambia Police Service – Child Protection Unit, Department of Immigration, Zambia Correctional Service, Office of the Commissioner for Refugees (COR), Ministry Responsible for Child Development, civil society organization representative, IOM, UNHCR or UNICEF (as and whichever is relevant to the case).

Section 53 of the Refugees Act 2017 requires the Commissioner for Refugees to assist a child to trace their parents or other family members in order to obtain information necessary for family reunification.

4.5.2 Registration of births and documentation among asylum seeker children

Section 5 of the Births and Deaths Registration Act states that “the birth of every child born … in Zambia after the commencement of this Act shall be registered in accordance with the provisions of this Act.” A child registered in accordance with the Act shall be entitled to a birth certificate.

However, refugees residing in urban areas without legal status do not have access to birth registration because they need a valid refugee identity document to apply for a birth certificate. Furthermore, a birth record from a health centre is a prerequisite for issuance of a birth certificate.

5.1.1 Reception official at first instance

There is expert authority who makes a decision in the first instance. The Commissioner for Refugees is responsible for the recognition of refugees and ensuring the provision of adequate facilities and services for the reception into and care for refugees within Zambia.

Section 64 of the Refugees Act requies an asylum seeker to immediately upon entery into Zambia report to a refugee officer or authorised officer, including a police officer, an immigration officer or a public officer, to register and submit an application for recognition as a refugee.

A person seeking asylum must first register as an asylum seeker and then apply for recognition as a refugee to the Commissioner for Refugees or to an authorized officer within 7 days of entry into Zambia.

If the application is submitted to the Commissioner, the Commissioner must then submit the application to the Refugee Status Determination Committee within 30 days for determination.

If an application is made to an authorised officer who is not an immigration officer, the authorised officer must within five days of receipt of the application, notify an immigration officer that the applicant is within Zambia and has made the application for refugee recognition. Furthermore, the authorised officer must within 30 days of receiving the application, submit it with supporting documentation and information to the Commissioner who, upon consideration of the application and determination that it should be referred to the Committee, submit it to the Refugee Status Determination Committee for determination.

Within 60 days of receiving an application, the Refugee Status Determination Committee must consider the application and determine whether to recommend to the Commissioner the person receive refugee status.

If the Commissioner accepts the Committee’s recommendation to grant refugee recognition, the Commissioner must inform the applicant within 7 days.

If the Commissioner refuses to recognise a person’s status as a refugee, the Commissioner must state the reasons for the refusal and inform them of the right to appeal to the Minister within 14 days.

5.1.2 Availability of legal representation, interpreters and resources in asylum seekers language

There are no provisions within the Refugees Act relating to access to information and guidance as to the procedure to be followed in a language and manner he or she understands. However, the National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to the above once publicised.

There are no provisions within the Refugees Act relating to access to an interpreter. However, the National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to the above once publicised.

There are no provisions within the Refugees Act relating to access to their personal interview report and that their approval should be sought on the contents of such report. However, the National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to the above once publicised.

5.1.3 Availability of Legal Aid

There are no provisions within the Refugees Act for asylum seekers to access legal aid nor in the Legal Aid Act. However, the National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to the above once publicised.

5.2.1 Confidentiality of personal information and data

Zambia’s Data Protection Act 3 of 2021 provides for the confidentiality and protection of personal information.

Section 53 of the Data Protection Act states that a data controller or data processor must obtain consent before disclosing personal information. It further requires the data controller or processor to inform the individual of when and to whom the information will be disclosed, the purpose of its disclosure, the security practices, privacy policies, and other policies, if any, that will protect it, and the procedure for recourse in case of any grievance in relation to it.

Section 68 of the Refugees Act 2017 states that any person who is employed for the purposes of this Act and disloses confidential information in violation of the Act commits an offence and will be liable for a fine and/or imprisonment for a term not exceeding two years. Section 2 of the Refugees Act 2017 further states that proceedings of the Committee shall be conducted with strict regard to the confidentiality of asylum applications.

5.3.1 Registration of family members of registered asylum seekers

The Refugees Act does not contain any information relating to household registration.

5.3.2 Obstacles to applying for asylum while in detention

Strict application of the requirement that “all asylum-seekers should present themselves at the port of entry to be issued with an asylum-seekers permit” creates indirect obstacles that prevent individuals in detention from submitting an application for asylum.

5.3.3 Making a claim for asylum at the border

Applications for recognition of refugee can be submitted at the border with an authorised officer. Once an application for refugee recognition has been submitted, that individual will be issued with an asylum seeker permit and transferred to a refugee reception area where they will wait for the outcome of their application. No particular border procedure exists in Zambian refugee law. The procedure is the same as described above.

Only authorised officers are permitted to process applications for refugee recognition. This includes a police officer, an immigration officer or a public officer who may or may not be border officials.

5.3.4 Necessity of travel or identity documents for concerned persons

The Refugees Act does not contain any information regarding the documentation of asylum seekers and all family members. It only refers to refugees

The Refugees Act 2017 and the Immigration and Deportation Act 2010 do not contain any provisions regarding the requirement to present identification or travel documents. However, the National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to this once publicised.

5.3.8 Challenges for individual asylum seeker claims for females

The Refugees Act 2017 and the Immigration and Deportation Act 2010 do not contain any provisions regarding procedures relating to female-asylum seekers. However, the Refugees Act does consider female asylum seekers to be vulnerable and section 4 of the Refugees Act requires the Commissioner for Refugees to provide adequate facilities and services for the reception into and care for refugees within Zambia who are vulnerable, ensuring suitable environments for the reception of refugees. This must take into account female asylum seeker’s vulnerability their specific needs and vulnerabilities.

The National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to this once publicised.

5.5.1 Standard of credibility for an asylum claim

The Refugees Act does not provide any guidance or regulation regarding the adjudication of asylum claims nor are there any regulations in this regard. The National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to this once publicised.

The Refugees Act does not provide any guidance or regulation regarding credibility assessments in the adjudication of asylum claims nor are there any regulations in this regard. The National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to this once publicised.

The Refugees Act does not provide any guidance or regulation regarding credibility assessments the adjudication of asylum claims nor are there any regulations in this regard. The National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to this once publicised.

5.5.4 Provisions and standards for decision makers

The Refugees Act does not provide any guidance or regulation regarding the decision-making process in the adjudication of asylum claims nor are there any regulations in this regard. The National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to this once publicised.

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

The Refugees Act does not provide any guidance or regulation regarding the adjudication of asylum claims nor are there any regulations in this regard. The National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to this once publicised.

5.6.1 Interview and decision making process at first instance

The Refugees Act does not make any provision for the right to an interview to assess an asylum-seeker’s claim.

The Refugees Act does not provide any guidance or regulation regarding the adjudication of asylum claims nor are there any regulations in this regard. The National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to this once publicised.

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

The Refugees Act does not provide any guidance or regulation regarding the adjudication of asylum claims nor are there any regulations in this regard. The National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to this once publicised.

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

No, national laws and regulations do not provide for this.

5.8.1 Asylum seekers right to appeal decisions

The Refugees Act states that a person who has been excluded from refugee status by the Commissioner or where the Commissioner refuses to recognise a person as a refugee, may appeal the decision in writing within 14 days to the Minister of Home Affairs.

5.8.2 Administrative assessment of appeals

The Minister of Home Affairs is the responsible authority for determining the appeal.

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

Section 15(4) states that the Minister will notify the appellant of the Minister’s deicison in the matter and the reasons for the decision. The laws and regulations do not provide for the manner in which this decision must be communicated nor the language of communication.

5.8.4 Procedures and standards of appeal hearings or interviews

The Refugees Act does not provide any guidance or regulation regarding the adjudication of asylum claims nor are there any regulations in this regard. The National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to this once publicised.

The Refugees Act does not provide any guidance or regulation regarding the adjudication of asylum claims nor are there any regulations in this regard. The National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to this once publicised.

5.8.5 Period between appeal hearing and final decision

Section 11 of the Refugees Act states that where the application for recognition as a refugee is rejected, that person has the right to remain in Zambia pending the exhaustion of that person’s right of appeal under section 15.

5.9.1 Children

5.9.1 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

The Refugees Act does not provide any guidance or regulation regarding the adjudication of asylum claims nor are there any regulations in this regard. The National Refugee Policy was approved by Cabinet in August 2023 and outlines a progressive approach to asylum and refugee management. It is likely that the National Refugee Policy may contain provisions relating to this once publicised.

5.10.2 Types of residence offered to refugees by legislation

Recognised refugees and their dependants are permitted to remain within Zambia within designated refugee settlements, which is an approved place of residence for refugees.

5.10.3 Duration of refugee status

The Refugees Act does not provide a minimum time frame for how long it is granted. Recognised refugees are entitled to be issued with an identity card. However, the Refugees Act does not specify the duration of these identity cards.

5.10.4 Issuance of individual identity documents certifying refugee status

Dependants of refugees are also entitled to be issued with an identity card if they are above the age of 16.

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

Section 45(5) and (6) states that where a recognised refugee dies, divorces or legally separates from the spouse, a person who, immediately before the death, divorce or legal separation, was within Zambia as a dependant of that recognised refugee in terms of this section will, subject to the other provisions of the Act, be permitted to remain within Zambia. A dependant of a recognised refugee who is permitted to remain in Zambia under this section may apply for recognition as a refugee under section 11.

5.11.1 Forms of complementary or temporary protection in legislation

National laws do not provide for complementary or temporary 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

If a person’s recognition is withdrawn because they are no longer in need of international protection, then, while the Refugees Act does not force them to return, they no longer have a right to remain in Zambia, the consequence of which is that they must depart.

5.13.2 Execution of removal orders

The Refugees Act only provides for the removal or expulsion of a recognised refugee. In terms of section 21, removal or expulsion orders are in writing and must be served on the individual recognised refugee. In terms of section 23(1), a recognised refugee who is facing expulsion may in person or through a legal practitioner or the United Nations High Commissioner for Refugees, within fourteen days from the date of the service of the notice, make representations against the expulsion, in writing, to the Minister.

Where a recognised refugee makes representations to the Minister, the Minister must before ordering the expulsion of that recognised refugee from Zambia, consider the representations made and determine whether the recognised refugee should be expelled or withdraw the order.

Where a representation is made by a recognised refugee, the order for the expulsion of that recognised refugee will be suspended pending the determination of the Minister. Despite the provisions of this section, a refugee who is considered to be a danger to national security or public order is not entitled to make representations if there are compelling reasons on grounds of national security.

The execution of an order for the expulsion of a recognised refugee under this section may be delayed for a reasonable period to enable the recognised refugee to seek admission to a country other than the country to which it is proposed to expel that refugee.

5.13.3 Readmission back into the country

No readmission agreements with any countries States could be found.

6.1.1 Protection against non-discrimination

In terms of section 27 of the Zambian Bill of Rights as well as section 29 of the Refugees Act 2017.

Laws that prohibit racism in Zambia include the Constitution, The Penal Code, Employment Code Act, and the Industrial and Labour relations Act. Section 25 of the Refugees Act further states that a recognised refugee and a dependant of the recognised refugee within Zambia are entitled to the rights and are subject to the duties contained in this Part, subject to the limitations imposed on the rights by the Constitution and any other written law.

6.2.1 Access to refugee travel documents or passports

Section 50 of the Refugees Act states that the Commissioner may recommend to the Department of National Registration, Passport and Citizenship that a recognised refugee, lawfully living in Zambia or whose travel document is lost, be issued with a travel document in the prescribed form.

6.2.2 Limitations on the right to movement

The Zambian Government has made reservations to the 1951 UN Convention Relating to the Status of Refugees regarding freedom of movement (Article 26), amongst others. The Government’s reservation to Article 26 on freedom of movement in the 1951 UN Convention has been domesticated into an encampment policy that requires refugees to reside in one of the designated refugee settlements unless they qualify for a permit to reside in urban areas. Section 63 of the Refugees Act states that a recognised refugee will be liable for an offence if they resides outside a refugee settlement without authority, or in a place other than the approved place of residence.

Refugees and asylum seekers are not permitted to choose their place of residence nor are they permitted to freely within the territory of Zambia. The government has an encampment policy that requires refugees and asylum seekers to reside in one of the designated refugee settlements unless they qualify for a permit to reside in urban areas. Zambia’s refugee settlments, include Meheba, Mayukwayukwa, Mantapala refugee settlements and urban settings, including Lusaka and Ndola.

6.2.3 Birth registration and documentation of children of refugees

The Births and Deaths Registration Act provides for the civil registration of children.

There are no available statistics from the Government of Zambia regarding the registration of children born in the country.

6.2.4 Freedom of religion

Yes, section 34 of the Refugees Act 2017 and 33 of the Constitution provides for freedom of conscience, belief and religion.

6.2.7 Rights of the Refugee Child

Although the Government of Zambia made reservations to article 22 of the 1951 Convention in relation to access to education, in actual fact refugee children in Zambia benefit from similar access to primary and secondary education as national learners. The main challenges hindering access to education for refugee children and youth are related to economic factors.

The Children’s Code, which provides for child protection systems, as well as the Guidelines for best interests determination for vulnerable child migrants in Zambia (2018) is applicable to refugee children as well.

6.2.8 Refugees rights to secondary and tertiary education

Although the Government of Zambia made reservations to article 22 of the 1951 Convention in relation to access to education, in actual fact refugee children in Zambia benefit from similar access to primary and secondary education as national learners. The main challenges hindering access to education for refugee children and youth are related to economic factors. Section 41 of the Refugees Act 2017 states that a recognised refugee lawfully living in Zambia may, upon producing an identity card issued under section 45, be issued with a study permit, as the case may be, in accordance with the Immigration and Deportation Act, 2010. Further, that a recognised refugee who is issued study permit may undertake studies at an educational institution or higher education institution and will, in respect of the employment or education, be treated in the same way as nationals of a foreign country in the same circumstances.

6.2.9 Refugee right to state social assistance

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

6.2.10 Access to legal assistance

Section 40 of the Refugees Act provides for refugees right to access courts and the Legal Aid Act provides for legal aid to individuals in higher and lower courts facing criminal charges or in matters against the state, where it is in the interests of justice.

6.2.11 Refugee rights to property

In terms of intellectual property, patents and artistic rights and freedoms, a recognised refugee has the right to freedom of expression in terms of the Refugees Act which includes freedom of creativity.

In terms of section 39 of the Refugees Act, a recognised refugee has the right, individually or in association with others, to own property in any part of Zambia.

6.2.12 Refugee rights to work and conduct business

Although the Government of Zambia made reservations article 17.2 of the 1951 Convention in relation to employment, in actual fact refugees may work. Section 41 of the Refugees Act states allows for recognised refugee to engage in gainful employment, to establish commercial and industrial companies in accordance with the Immigration and Deportation Act 2010, and any other written law, and to engage in self-employment in agriculture, industry, handicrafts, commerce and other activities. Furthermore, a recognised refugee who holds an educational qualification recognised by the relevant competent authorities, and who is desirous of practising a profession, has the right to choose a trade, an occupation or a profession, subject to limitations imposed by law.

6.2.13 Refugee rights to financial institutions

National laws and regulations don’t provide for financial inclusion. However, the Central Bank allows mobile money service providers to serve persons who present refugee ID cards or registration documents issued by the Ministry of Home Affairs.

6.2.14 Labour rights and social security for refugees

In terms of section 32 of the Refugees Act, refugees are protected from slavery, servitude, and forced labour. Additionally, the Employment Act, Chapter 268 of the Laws of Zambia extends to refugees.

6.2.15 Social assistance for refugees with disabilities

No, they are not.

6.2.16 Duties of a refugee towards host state

Section 25 of the Refugees Act 2017 provides for the rights and duties of recognised refugees, but does not specify what duties a refugee has to Zambia.

7.1.1 Administrative and procedural standards for voluntary repatriation

No frameworks exist within the legal and administrative framework. The only voluntary repatriation framework is one based on a tripartite agreement signed in 2006 by UNHCR and the governments of Zambia and the DRC.

7.2.1 Progression towards self-reliance for refugees

The Comprehensive Refugee Response Framework (CRRF) and Local Integration Programme address many of the questions and issues of potential self-reliance amongst refugees in Zambia.

7.2.2 Opportunities for naturalization under legislation

Section 37 of the Constitution together with section 17 of the Citizenship of Zambia Act 33 of 2016 provides for citizenship by registration (or naturalisation). The Constitution entitles a person to apply to the Citizenship Board of Zambia to be registered as a citizen if that person has attained the age of eighteen years and was born in Zambia and has been ordinarily resident in Zambia for a period of at least five years; or was born outside Zambia, has or had an ancestor who is, or was, a citizen and has been ordinarily resident in Zambia for a period of at least five years; or has been ordinarily resident in Zambia for a continuous period of at least ten years; immediately preceding that person’s application for registration for citizenship.

Section 2 of the Citizenship Act defines “ordinarily resident” to means a person who has been a resident in Zambia and is a holder of a residence permit issued under the Immigration and Deportation Act, 2010. Consequently, refugees or former refugees would not be able to acquire citizenship by registration.

Although section 37 of the Constitution together with section 17 of the Citizenship of Zambia Act 33 of 2016 entitles a person to apply for naturalisation if that person has attained the age of eighteen years and was born in Zambia and has been ordinarily resident in Zambia for a period of at least five years, refugee children are not eligible due to the requirement of “ordinarily resident”, which means a person who has been a resident in Zambia and is a holder of a residence permit issued under the Immigration and Deportation Act, 2010.

7.2.3 Opportunities for permanent residency under legislation

A foreign national is only entitled to acquire permanent residence in Zambia if they held certain categories of residence permits in terms of section 20 of the Immigration and Deportation Act 2010 for a period of 10 years.

7.2.4 Availability to access active migration or skilled entry schemes

A refugee may be issued a work permit upon the producing the refugee’s identity card. Issuance of a work permit is subject to normal immigration procedures, including a government policy that requires the immigration department to ascertain that there is no qualified and available citizen to perform the job.

Section 41(2) states that the work permit allows the refugee to “engage in gainful employment” and to be “treated in the same way as nationals of a foreign country in the same circumstances.” Additionally, a refugee can engage in certain self-employment, found companies, or engage in a profession should the refugee have qualifications recognized by the relevant authorities, as per section 42 of the Refugees Act.

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

A pre-pilot UNESCO Refugee Qualifications Passport aiming to help displaced people with missing qualification documents was launched in Zambia in 2019.

It is designed to help refugees and other crisis-affected displaced populations access higher education. UNESCO has developed an innovative tool, which aims to provide academic recognition and opportunities for those seeking refuge in their host countries and beyond. The UNESCO Qualifications Passport “serves as a universal proof of academic qualifications for refugees and vulnerable migrants. Although this document does not constitute a formal recognition or authorization to practice a certain profession, it summarizes and presents available information on the applicant’s educational level, work experience and language proficiency. It serves provides clear instructions on how their qualifications can be utilized in their host countries. By bridging the gap between their previous educational achievements and the opportunities in their new surroundings, the Qualifications Passport empowers refugees and migrants to pursue further studies or secure employment, ensuring a sense of stability and self-sufficiency.”

7.2.6 Inclusion of refugees in national development plans

The Zambian government adopts a holistic approach with linking development to relief assistance and addressing both the needs of refugees and the host population. Most notably is the Zambia Sustainable Development Cooperation Framework 2023–2027.

7.2.7 Empowerment of refugee women

There are a number of measures that have been instituted by the UNHCR and civil society organisations but no designated measures by the Government of Zambia.