Refoulment is the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution. The principle of non-refoulement forms essential protection under international human rights, refugees, humanitarian, and customary law. It prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment, or other serious human rights violations. Under international human rights law, the prohibition of refoulement is explicitly included in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). 

Regional case law in support of this has been Ruta v Minister of Home Affairs14 and Saidi and Others v Minister of Home Affairs and Others. The court determined that prospective asylum seekers in South Africa are entitled to apply for asylum at any time that they might wish, even if they may delay in making such an application. It further stated that a Refugee Reception Officer (RRO) has the power to extend the permit issued under Section 22(1) of the Refugees Act 130 of 1998 (South African Refugees Act) pending finalisation of judicial review proceedings under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), in respect of a decision made in terms of the South African Refugees Act refusing an application for asylum made under s 21(1) of the South African Refugees Act. In addition, pending the finalisation of the review proceedings, an RRO is obliged to extend the permit of the asylum seeker concerned. This paper interrogates the correctness of these decisions and, in particular, explores their application and exposition of the principle of non-refoulement.

With this in mind, Kenya, a party to the United Nations Refugee Convention of 1951 and its 1967 protocols, was recently cited for violation. Kenya, which was once considered a haven for asylum seekers, is slowly becoming a hostile place for some of those seeking protection from political persecution and war. The government of Kenya admitted to having recently deported Turkish refugees back to Turkey. 

These actions have brought Kenya under fire on the grounds that the Turkish nationals who were recognised refugees in Kenya were kidnapped and eventually deported back to Turkey, where they were to face criminal charges. Further, this has also demonstrated the Kenyan government’s willingness to violate international law principles on non-refoulment. The Kenyan government, through the Ministry of Foreign Affairs, tried to defend itself, stating that it had received a guarantee from the Turkish Government that they would protect the rights of the nationals that had been deported. This breach punctures Kenya’s legal commitments and its international moral standing and threatens three decades of confidence in the country’s humanitarian protection for the 780,000 refugees on Kenyan soil who need it today.