Refugee Freedom of movement restricted in Zambia

By Sophie Chiasson, published initially on the Rights in Exile on 01.11.2015

Although Zambia has a long tradition of hosting refugees and has been recognised as a generous and hospitable host, current legislation and policies impede the rights of refugees to freedom of movement, which, as IRRI has previously argued, is a “critically important refugee right.” A policy of refugee encampment, which isolates refugees in camps and settlements, hinders integration with local communities and impedes long-term solutions to displacement problems.

In 2015, UNHCR advertised that its programmes in Zambia would “focus on durable solutions,” one of which is local integration. However, of the 51,611 refugees registered in Zambia today, the majority remain in settlements, unable to leave and secluded from local communities, opportunities and services. Although Zambia has taken some positive steps in regard to integration in the last few years, its insistence on the policy of encampment and denial of the right to freedom of movement are undermining this progress. Given that most rights are contingent upon freedom movement and because, as IRRI advocates, encampment is a significant obstacle to durable solutions, the government of Zambia needs to relax its encampment policy, a step which would be in line with UNHCR’s Alternatives to Camps policy.

In the past five years, the government of Zambia has taken some positive steps towards facilitating local integration for select groups of refugees. In 2010 Zambia pledged to offer residence permits to 10,000 Angolan refugees and in 2013 agreed to facilitate naturalisation for 4,000 former refugees from Rwanda. Although a number of Angolans have successfully received permanent residence, as IRRI has written, the latter process has encountered significant problems. In addition, while some have been able to access permanent residence, such status remains out of reach for the majority of refugees in the country who are instead forced to reside in either the Meheba or Mayukwayukwa settlements. Problematically, both the Constitution of Zambia, Article 6(1)(b), and the Citizenship Act of Zambia, Section 16(2)(b), require that an individual is an “ordinary resident” in the country for 10 years before applying for citizenship. However, as UNHCR points out, Zambian law does not view refugees as “ordinary residents” in the country, therefore significantly limiting their access to naturalisation procedures. Further, refugee children are not granted citizenship by birth but must assume the nationality of their parents.

Zambia is a state party to the 1951 Convention Relating to the Status of Refugees (1951 Convention) and its 1967 Protocol, which affirms the right to freedom of movement. However, Zambia has maintained a number of significant reservations to the 1951 Convention that inhibit the rights of refugees to freedom of movement, education, and employment. For example, while Article 26 of the 1951 Convention states that contracting states shall allow refugees the right to choose their place of residence and move freely within the territory, in its Reservations and declarations to the 1951 Refugee Convention (1951 Reservations) Zambia declares “it reserves the right to designate a place or places of residence for refugees.” Zambia also makes it clear in the reservations that the country does not accept any obligation to grant refugees rights to elementary education or to wage-earning employment.

Zambia’s current refugee legislation, the Refugees (Control) Act, 1970 (Refugees Act 1970), which grants the responsible Minister broad powers over refugees, reflects the country’s reservations to the 1951 Convention and institutionalises a policy of refugee encampment. Similar to Tanzania’s refugee legislation, refugees in Zambia are required to reside in one of the country’s designated settlements, a provision that officials strictly enforce, unless an individual refugee qualifies for an urban residency permit or has written permission from an authorised officer for an internal travel document. If a refugee is found outside a designated settlement without the required permit, she or he risks arrest and detention by immigration authorities and of being found guilty an offence against the act. Further, to even exit a settlement, camp-based refugees must have a gate pass issued by a Refugee Officer. Pursuant to Section 16 of the Refugees Act 1970, an authorised officer may “arrest without warrant any refugee reasonably suspected of having committed or attempted to commit an offence [against the Refugees Act].” Upon conviction, a refugee may be imprisoned for no more than three months. Refugee legislation in Zambia therefore works to control the movement and activities of refugees and to restrict their ability to integrate into Zambian society.

To challenge the restrictions on their movement, refugees must apply to the Sub-Committee on Urban Residency, which reviews and adjudicates applications for urban residency permits. The Sub-Committee is comprised of officials from, inter alia, the Immigration Department and Ministry of Labour and Social Services. To qualify for an exemption to encampment, a refugee must meet at least one of the following five criteria, agreed upon by the government and UNHCR: (1) have a permit for employment, self-employment, or study issued by the Department of Immigration; (2) require medical care not accessible in the settlements; (3) show an established family connection with a refugee already in an urban area; (4) face a specific security problem; or (5) be awaiting resettlement to a third country. If approved, a refugee is given an urban residency permit – a bar-coded electronic identification document – valid for one to three years. As of 2010, 4,407 refugees were registered in urban areas as being, or having been, in possession of an urban residence permit.

Problematically, because the Immigration and Deportation Act of 2010 does not make special provisions for refugees, they must, like other foreigners, obtain a permit to engage in employment or to study at an educational institution. However, a refugee must first obtain a job before applying for a permit, which is a lengthy and complex process and involves documenting that no Zambian is qualified for the job. The employment permit costs USD 500. A study permit costs USD 100 and also requires a letter of acceptance from an institution recognised by the Ministry of Education. For refugees to be legally self-employed, pursuant to the Immigration Act, they must show a substantial amount of investment (USD 25,000 in assets).

Although it is difficult to calculate how many refugees live without the required permit in urban areas today, in 2013 the Zambian Red Cross Urban Refugees Project estimated that as many as 15,000 unregistered refugees may live in Lusaka alone. Without proper documentation, refugees are at risk of arrest, deportation, and exploitation. The UN Special Rapporteur on human rights and extreme poverty, Ms. Magdalena Sepúlveda Carmona, has found that because unregistered urban refugees in Lusaka face impediments to employability in the formal sector, many resort to work in informal markets where they are more likely to be exposed to exploitative working conditions and abuse. In addition to strict legislation, social discrimination also makes it difficult for undocumented urban refugees to obtain employment and access a host of services, including health-care and education. In 2007, UNHCR reportedly instructed the Zambian Red Cross to serve only those with urban residency cards, buttressing the country’s encampment policy and prohibiting others from accessing important services. These factors make undocumented urban refugees vulnerable to extreme poverty.

Despite the many challenges that undocumented urban refugees may face, IRRI has argued there are multiple reasons why refugees may choose to leave camps or forgo them altogether, including to seek employment, educational opportunities, improved standards of living or a greater sense of security. Further, not having the right to move freely or to work undercuts opportunities for self-reliance and instead instils dependence on assistance, which negatively impacts feelings of human dignity. Officials in Zambia have turned their minds to replacing current refugee legislation with the Refugee Bill (2008), which, still in draft, incorporates definitions from the 1951 Convention and notes that refugees are entitled to rights enshrined therein. In theory, the legislation makes it easier for refugees to obtain work and study permits. Problematically, however, the bill does not specifically enumerate rights for refugees and retains the country’s encampment policy. Under the new legislation, the responsible official would continue to have the power to designate places for refugee settlements. As such, if UNHCR is committed to focusing on durable solutions for refugees in Zambia, it should encourage the country to implement legislation that protects the rights of refugees to freedom of movement. It also presents an opportunity to roll out the Alternatives to Camps policy, to demonstrate that the free movement of refugees benefits not only the refugees themselves, but also the host country.

Sophie Chiasson was an intern with the International Refugee Rights Initiative in Kampala, Uganda during the summer of 2015 and is currently a Juris Doctor candidate at Osgoode Hall Law School in Toronto, Canada.