Unpacking Ethiopia’s revised refugee law

Africa Portal managed by SAIIA published my latest analysis on #Ethiopia’s revised Refugee Law.

Ethiopia’s parliament adopted a revised refugee law on 17 January 2019, which the United Nations (UN) has hailed as one of the most progressive refugee laws on the continent. It replaces the country’s 2004 Refugee Proclamation, and grants the country’s massive refugee population access to local integration, a wide range of services and improved socio-economic integration.  Ethiopia is both a country of origin, destination and transit for large forced migration flows, including refugees. As the second largest host country in Africa, it is home to over 900 000 refugees, most of whom arrive from neighbouring South Sudan, Somalia, Sudan and Eritrea with small numbers from Yemen and Syria. The Administration for Refugees and Returnee Affairs (ARRA), under the National Intelligence and Security Services (NISS), is the primary government agency responsible for the management of refugees and returnees. The agency works in tandem with international bodies, including the United Nations High Commission for Refugees (UNHCR), which was involved in drafting the new refugee law. 

Towards durable solutions 

The revised law is reflective of the nine pledges Ethiopia made in 2016 under the New York UN Comprehensive Refugee Response Framework (CRRF) and the Intergovernment Authority on Development’s (IGAD) Declaration on Durable Solutions, specifically addressing refugees from Somalia. As early as 2016, the Ethiopian government had already agreed with the European Union that 30 percent of employment in new industrial parks would be assigned to asylum seekers and refugees. Both the World Bank and UNHCR agreed to provide Ethiopia with USD 350 million for the local integration of refugees. Furthermore, Ethiopia has, in recent years, revised its laws related to trafficking in persons, smuggling of migrants and labour migration. The revised refugee law is expected to bring a shift in policy towards local integration as one of the durable solutions. As part of its 2016 pledges, Ethiopia committed to ensure that refugees benefit from and participate in infrastructural, education, health, and natural resource development. Accordingly, the government pledged to allocate 10 000 hectares of land for refugees to engage in agricultural cultivation. It is also set to offer jobs to refugees in the Dire Dawa Industrial Park. Vital statistics and registration certificates, banking services, driving licences, property-related rights, employment rights and freedom of movement equal to non-Ethiopian residents are also under consideration. Local integration in groups or individually within the country has also been considered for a few years now. An outcome of repeated intensive and relentless migration diplomacy, the revised refugee law was introduced to confer legal standing to the CRRF and other pledges Ethiopia has made to the UN, EU and other development partners. These pledges and partnership agreements require the revision of the 2004 Refugee Proclamation that did not provide the local integration of refugees as a major durable solution. While the legislative intention of the revision is to offer durable solutions to Ethiopia’s large refugee population, the revision also takes stock of the shortcomings of the 2004 Refugee Proclamation. Focused on legalistic measures of deterring secondary migration, the EU policy of containment of migration through development projects is behind the push for a durable solution. 

The details

Highly liberal in approach and substantive in content, the revised refugee law has been hailed as “a model for other refugee hosting nations around the world”. But what does it entail and what is the motivation behind this significant policy change? 

The revised refugee law introduces the following seven substantive changes:

1. Its main focus is on durable solutions through local integration of refugees. 

The 2004 Ethiopian Refugee Law focused on protection of refugees, while the revised law aims to offer durable solutions, particularly with regard to local integration. The anchor instruments of the new law remain the 1951 UN Refugees Convention and the 1961 OAU Refugee Convention. However, it has also added new legislative intentions such as ‘comprehensive legal framework’ and ‘international standards that contain rights and entitlements’. It introduces various mechanisms for achieving durable solutions and facilitative measures towards local integration. The most far-reaching provision is Article 25, which could be termed as the local integration provision or the containment provision. Article 25 imposes many obligations on Ethiopian authorities with regard to asylum seekers or refugees that are selected to engage in Ethiopian government projects funded by the EU and potentially other donors. For example, NISS is obliged to issue renewable five-year resident permits to refugees selected to such ‘projects’ under Article 25. Refugees’ access to jobs is not to be limited to industrial parks but also extends to projects in rural or urban setting including but not limited to agriculture, environment, industry, and small and micro enterprises. Furthermore, under the revised law, asylum seekers or refugees who have lived in Ethiopia for a “protracted period” could request to be integrated locally. An asylum seeker or refugee who fulfils the requirements under the nationality law of Ethiopia may apply for naturalisation. Moreover, refugees have the right to safe and dignified repatriation with free and informed consent. This makes repatriation the right of the refugee, not that of the NISS.  

2. It expands the grounds for asylum protection. 

The grounds for refugee determination include race, religion, nationality, membership of a particular social group, political opinion or other similar grounds. The definition of ‘asylum-seeker’ includes ‘presumptive refugees (any person or group of persons who presents himself or themselves at the border or frontier or within the territory of Ethiopia seeking refugee status in accordance with provisions of this Proclamation.).” Collective refugee status could be granted to asylum seekers from a specific country facing specific events warranting protection as per the Proclamation grounds.  The definition of a refugee under the new law is more liberal than the 1951 UN Convention as it adopts the one provided under 1969 OAU Convention which includes protection for those fleeing external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of their country of origin or nationality. In this regard, the introduction of the term ‘other similar grounds’ could be progressively construed to include cattle rustling and severe drought that affect the pastoralist communities. An additional clear stipulation in this law is the fact that asylum protection could be granted on account of situations that took place after a person left his/her country of habitual residence or origin. The new law also gives an expanded definition of “family members” and imposes an obligation on the Ethiopian government to facilitate the reunification of family of refugees or asylum seekers, when such requests are made.  

3. It takes a more liberal approach to the asylum application process. 

The time prescription for submission of asylum applications and the right to appeal are now more flexible than provided in the 2004 law. Late asylum applications could be received by NISS with explanation of reasons for such delay. Furthermore, asylum applications could be submitted by a representative when circumstances prevent the asylum seeker from submitting the application by him/herself. Moreover, all asylum seekers have a right to get information about the procedure of application, decision and rights and their rights and duties. Such information should also be provided in ‘a language he or she understands’.  The NISS must render decisions within six months of receiving an application, while appeals need to be determined within three months. The law puts special emphasis on the peculiar vulnerabilities and the specific needs of categories of asylum seekers or refugees such as children and women. A very progressive provision is that there are no criminal charges or penalties for illegal entry into the country. These provisions reflect international standards. Similarly, this new refugee law also requires that NISS ensures that all personnel interviewing an asylum seeker for determination of status have the necessary knowledge of domestic and international laws. The same obligation is imposed on NISS with regard to the members of the Appeal Council. The asylum-seeker could also request for an interviewer of a specific sex.  The best interest of the child principle must guide the interview and appeal process of child asylum-seekers. The revised law obliges NISS to invite the UNHCR to status determination processes to participate as an observer. While in practice the UNHCR has an excellent collaboration with ARRA (NISS), in the 2004 refugee law such invitation was discretionary for NISS. The revised law also offers the asylum seeker the right to appeal to the Federal Supreme Court on issues of error of law. It allows NISS to deport an asylum seeker who fails to apply, is unable to prove his case and fails to appeal. A failed asylum seeker may be allowed to stay temporarily in order to seek admission to another country. Given that some of the refugees in Ethiopia, particularly those from South Sudan, have dual nationalities, it also considers asylum seekers as only those unable to make use of their protection of the state they have nationality in.  

4. It grants the most favourable treatment to refugees in terms of access to services. 

The minimum right to access services accorded to asylum seekers or refugees will be equal to that of foreigners residing in the country. At the same time, some privileges such as access to health, justice, banking, telecommunications, vital events registration and certification services will be of the same level to that of Ethiopian nationals. The revised law grants same primary education rights to asylum seekers or refugees as accorded to Ethiopians. These rights extend to secondary, higher, technical and vocational education and training, and informal education subject to the limitation imposed by availability of resources and education policy of the country. The law also stipulates that refugees and asylum seekers should enjoy the equivalent treatment accorded to foreign nationals. Their intellectual property rights are also protected. Moreover, during rationing of goods in short supply, asylum seekers or refugees shall enjoy the same rights as nationals. Asylum seekers or refugees are not expected to pay tax or other duties other than those imposed on nationals. These rights are the maximum and are equal to those of Ethiopian nationals. While the law grants asylum seekers or refugees’ access to banking services including money transfers, it is not clear whether they are allowed to transfer foreign currency, or they are free of such restrictions as foreigners employed in Ethiopia. Though not clearly formulated, one can conclude that the financial and banking laws of the country would take precedence on such rights. For example, the limitations on foreign currency transfer outside the country imposed on Ethiopian nationals would apply on asylum seekers and refugees. This favourable treatment of refugees extends to rights of association and collective bargains, etc. 

5. Refugees will enjoy employment and property rights. 

Refugees have the right to employment including in private activities of livelihood sources such as agriculture, industry, small and micro enterprise such as handicrafts. Asylum seekers or refugees have rights to engage in commercial businesses and own and dispose property as accorded to foreigners. National labour policies and laws that restrict employment to nationals only will not be applicable to asylum seekers or refugees who are married to an Ethiopian or have an Ethiopian child. Employment in the “National Defense, Security, Foreign Affairs and other similar political establishments” are the only areas restricted to asylum seekers and refugees. Given the similarity of the formulation of the restricted employment areas with the diaspora law of Ethiopia, it is safe to conclude that asylum seekers or refugees will enjoy same treatment as accorded to Ethiopian diaspora. In 2017, Ethiopia’s average urban unemployment to population ratio was 52.4 percent, while the national average unemployment to workforce ratio has been 17.2 percent (due to agricultural needs seasonally absorbing the majority of the rural population in low productivity activities). New labour force entrants are expected to increase by at least two million per annum. Job seekers will increase on average by 600 000 per year, while the current nationwide capability for job creation, including newly established industrial parks, amounts to less than half this number. In a country with pressing social considerations, jobs become critical to the national agenda. While the revised refugee law constitutes extremely bold and novel moves to grant employment rights to refugees, such provisions should have been appropriately addressed in a labour policy, rather than legal proclamation. Such provisions encode policy issues in laws, denying flexibility and making it extremely difficult for frequent revision. These provisions impose legal duties that the government may not disregard even when situations demanding restrictions arise. The revised law disallows any differentiated approach to local integration of asylum seekers or refugees based on their origins. For some communities in Ethiopia, the long-term impact of the revised refugee law on demography is a source of concern. Given previous historical incidents, these concerns are not groundless. Under the Ethiopian federal arrangement, power is shared in direct proportion to the populations of ethno-cultural communities. By upsetting the demographic balance, protracted refugee situation complicates relations with host communities. In Gambella Regional State, demographic changes due to a large refugee population or internal migration have triggered and exacerbated violent inter-ethnic conflict between refugees and host communities. Host communities in Gambella fear that large movement of refugees from kin communities in neighbouring South Sudan could create new numerically superior host communities that could potentially upset the delicate balance between population numbers and allocation of state power in Ethiopia’s federal arrangement. With less than 200,000 native inhabitants, a large refugee population affects the regional administrative power allocation that is in direct proportion to the population of the country’s ethno-cultural communities. Despite lower levels of violence, refugee-host community tensions resulted in rioting and revenge attacks in and around the Jewi refugee camp in Gambella, following a traffic accident on 21 April 2016 that killed two refugee children. Discontent about the revised refugee law has also recently been expressed. Property-related rights that are applicable to foreigners are also conferred on asylum seekers and refugees. Though it is not clear how asylum seekers or refugees could ensure access to their assets and property in the countries from where they fled, the revised law allows them to import such property free of tariffs at the time of their admission to Ethiopia. Logically consistent, the law also permits asylum seekers or refugees to take their assets with them from Ethiopia when they leave.  

6. Asylum seekers and refugees have the right to recognition of their certificates of education, training and skills. 

They have the right to acquire and use a driving licence after fulfilling the requirements. They also have the right to obtain identity papers and documents for international travel. Another yet very important right granted to asylum seekers and refugees is access to identification documents, travel documents, pass permit, proof of registration and birth certificates. Asylum seekers or refugees will also have the right to access vital documents and recognition of academic credentials for professional refugees who would like to practise their profession. Furthermore, asylum seekers or refugees are not expected to pay for travel documents, IDs and visa- related fees. This was not the case under the 2004 refugee law.

7. It grants freedom of movement to refugees, ending the encampment policy. 

While most refugees are housed in camps, the government has applied an ‘out-of-camp’ policy that allows some to live in urban areas for education, medical or special protection needs. Previously, the out-of-camp policy was partially applied based on the origin of refugees, specifically tens of thousands from Somalia and Eritrea who live in urban areas (particularly in Addis Ababa) unregistered and unassisted. Thus a de facto out-of-camp policy for refugees existed for long time. Since 2007, Ethiopia has applied an official out-of-camp policy for refugees as an alternative policy to encampment. Now, the revised law permits free movement and residence for all asylum seekers and refugees. In effect, this provision addresses the long-standing problem of the 2004 refugee law related to encampment of asylum seekers and refugees. Ethiopia’s ad hocde facto partial ‘out of the camp arrangement’ is now a de jure permanent policy to be applied to all refugees and asylum seekers. In a restricted case, NISS has the right to limit the reasonable residence areas for asylum seekers and refugees. With the revised refugee law, Ethiopia has become a pioneer in progressive norm setting for refugee protection, assistance and provision of durable solutions. Now, it is time for implementation. While promulgating a new proclamation is easier and can be done by the Ethiopian government alone, implementation of such generous and liberal law requires solidarity at a global level.