The High Court in Nairobi has ordered the government to reopen asylum registration for Eritreans and Ethiopians fleeing conflict from their home countries, ruling that a blanket ban on their applications was unlawful and discriminatory.
The court also quashed restrictions on refugees seeking permission to live outside designated areas and on applicants who had previously sought asylum in another country.
The judgment follows a July 31, 2025, decision by the Acting Commissioner for Refugee Affairs to suspend the registrations, citing concerns that some Eritrean and Ethiopian nationals were exploiting asylum procedures while being trafficked or smuggled through Kenya to destinations including South Africa and Libya. The government also cited national security and abuse of the asylum system.
The restrictions affected people from countries marked by conflict and repression, including Ethiopians displaced by fighting in Tigray and other regions, and Eritreans fleeing compulsory national service and political persecution.
The case arose from a petition filed in September 2025 by Refugee Legal Networks, the Kenya National Commission on Human Rights, Refugee Consortium of Kenya, Kituo Cha Sheria and Sanctuary Foundation.
They argued that the Commissioner had exceeded powers under the Refugees Act, discriminated against people based on nationality and issued the notice without reasons or a hearing.
The contested memorandum, titled “Temporary Suspension of Selected Services”, contained four directives. The first stopped registration of Eritrean and Ethiopian asylum seekers “until further notice”.
The second suspended applications for exemptions, changes of address and data transfers used by refugees seeking permission to live outside designated areas. The third barred registration of “onward movers”, meaning people who had previously sought asylum in another country.
A fourth directive required asylum and refugee services in Nairobi to be offered only at the General Mathenge field offices.
The government argued that the restrictions were temporary administrative measures intended to address human trafficking, smuggling, data-integrity concerns and security risks. It said genuine asylum seekers from the two countries continued to be considered individually.
But Justice Gregory Mutai found that the Refugees Act did not give the Commissioner power to suspend statutory registration duties for entire categories of applicants.
“A measure that by design leaves a class of persons undocumented, and so liable to arrest, threatens their freedom and security and fails to respect their inherent dignity,” said the judge.
He ruled that officials must receive applications and assess each case under the law, including whether an applicant meets individual grounds for exclusion. The court stressed that individual processing remains necessary to determine eligibility and any applicable security exclusions.
“To deny them access to the asylum process because they may have been trafficked is to penalize them for the crime committed against them,” he stated.
“The court therefore finds that Directives 1, 2 and 3 were issued without legal authority,” the court stated. It declared all three void and found the first directive discriminated against Eritrean and Ethiopian asylum seekers because of their national origin, contrary to the Kenyan Constitution and Article 3 of the 1951 Refugee Convention.
The court also found that the notice breached the constitutional right to fair administrative action because the government had not given affected people prior notice, reasons or an opportunity to be heard. Explanations provided after the petition was filed did not remedy the failure.
The judge separately rejected the blanket restriction on onward movers. He found that under the law, the Refugees Act, 2021, a previous asylum claim does not automatically disqualify someone from registration in Kenya.
“A person who sought asylum in a country that will not readmit him or her, or that cannot protect him or her, is thereby left without access to protection anywhere,” said Justice Mutai.
Officials must examine whether the person was granted asylum elsewhere, can be readmitted to that country and would receive effective protection there, following an individual assessment under the Refugees (General) Regulations, 2024.
The judgment cited the account of Ethiopian asylum seeker Ms Lidiya Belachew Shiferaw, who said officials refused to register her even after an interim court order and that she had not received an asylum seeker pass after submitting paperwork.
The court described her evidence as specific and unanswered, but did not find that allegations of actual deportations had been proved. Court documents also revealed alarming accounts of asylum seekers being detained at borders, denied screening interviews, and facing imminent deportation despite credible fears of persecution.
Justice Mutai said the suspension threatened the principle of non-refoulement, which prohibits returning people to places where they face persecution or other serious harm.
“A measure that by design leaves a class of persons undocumented, and so liable to arrest, threatens their freedom and security and fails to respect their inherent dignity.”
The court ordered the Commissioner and the Interior Ministry to resume receiving and registering Eritrean and Ethiopian asylum applications, refer onward movers for individual assessment, and determine exemption, address-change and data-transfer applications on their merits.
The government was ordered to file a compliance report within 60 days of the judgment. The court stressed that the judgment does not automatically grant refugee status or prevent security screening. Authorities may still verify identities, assess individual security concerns, apply statutory disqualification rules and prosecute traffickers or smugglers.
