Refugees can work without permits, declares High Court
While the court rejected most of the alleged constitutional violations for lack of sufficient evidence, it declared that recognised refugees and asylum seekers are entitled to fundamental rights guaranteed under the Constitution, except those reserved exclusively for Ugandan citizens.
Refugees can work without permits, declares High Court
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The High Court in Kampala has declared that recognised refugees have the right to work in Uganda without obtaining work permits.
Acting Justice Simon Peter Kinobe partly allowed the application filed by human rights activist Brian Kasajja on behalf of; Suther Rajesh Kumar, Ivon Live Shay, Patrice Mukulu Mwisha Nguba and Bijoux Mutoni.
While the court rejected most of the alleged constitutional violations for lack of sufficient evidence, it declared that recognised refugees and asylum seekers are entitled to fundamental rights guaranteed under the Constitution, except those reserved exclusively for Ugandan citizens.
Justice Kinobe also held that the Directorate of Citizenship and Immigration Control violated the rights of Rajesh, an Indian national married to a recognised Congolese refugee, by arresting and prosecuting him despite the protection accorded to family members of recognised refugees under the Refugees Act.
The judge consequently issued a permanent injunction restraining immigration authorities from arresting or prosecuting recognised refugees working with valid refugee identity cards unless there is reasonable suspicion that they have committed an offence.
He further declared that recognised refugees are exempt from obtaining work permits and awarded the applicants one-third of the costs of the application.
Kasajja had sued the Attorney General and Inter-Aid Uganda, contending that Kumar and the other applicants had suffered violations of their constitutional rights to liberty, equality, dignity, livelihood and freedom from discrimination.
He also sought declarations that recognised refugees are entitled to work without work permits, compensation, establishment of a specialised refugee police unit, a dedicated budget for urban refugees and nationwide refugee rights awareness campaigns.
According to court records, Kumar was arrested in March 2016 for allegedly working while holding an asylum seeker certificate. He was later released on immigration bond but was re-arrested in November 2017 after obtaining refugee status and a refugee identity card.
Kasajja further alleged that Congolese refugees Nguba and Mutoni suffered repeated arrests and discrimination, while authorities failed to investigate the reported crimes.
Justice Kinobe first held that the High Court had jurisdiction to hear the matter under Article 50 of the Constitution and the Human Rights (Enforcement) Act.
The judge also rejected the Attorney General's preliminary objection challenging Kasajja's legal standing, holding that Article 50(2) permits any person to institute proceedings on behalf of another whose rights are alleged to have been violated.
He further ruled that the application had been filed within the statutory limitation period.
However, the judge emphasised that the burden of proof remained with the applicants despite the Attorney General's failure to file a replying affidavit.
"The applicant still bears the duty to prove the asserted facts on a balance of probabilities," Justice Kinobe observed.
The court explained that although unrebutted affidavit evidence is generally presumed admitted, it must still be tested to determine whether it supports the legal remedies sought.
Justice Kinobe rejected Kumar's claim that he had been detained beyond the constitutional 48-hour limit, finding that he failed to produce sufficient evidence, such as police records or charge sheets, proving the exact dates of his detention and release.
Similarly, claims that repeated arrests amounted to torture, inhuman or degrading treatment failed because no medical evidence was produced to demonstrate psychological harm.
The court also rejected allegations that Kumar's right to livelihood had been violated, finding no evidence that his arrest prevented him from accessing employment.
Claims by Shay that police discriminated against her by refusing to record her assault complaint were dismissed for lack of evidence.
Justice Kinobe also rejected Nguba's allegations that police failed to investigate attacks against him, holding that no evidence had been presented to prove negligence or deliberate failure by law enforcement officers.
The court further struck Inter-Aid Uganda out of the proceedings after finding that it had never been served with the application.
The court found merit in Kumar's complaint regarding his rights as the spouse of a recognised refugee.
Justice Kinobe held that under Sections 25, 35 and 37 of the Refugees Act, family members of recognised refugees are entitled to the same protection as recognised refugees, including immunity from prosecution for unlawful entry or presence in Uganda.
The judge ruled that Kumar's arrest and prosecution while his refugee application was pending violated those statutory protections.
He declared that recognised refugees have a legal right to work in Uganda without obtaining work permits and that recognised refugees and asylum seekers are entitled to all fundamental rights under the Constitution except those reserved for citizens.
The court, however, declined to grant the applicants' broader requests for compensation, establishment of a specialised refugee police unit, creation of a dedicated refugee budget and mandatory nationwide awareness campaigns, finding that the evidence presented did not justify those orders.