Section 17 2017 Refugees Act combines cancellation and revocation, which can lead decision makers to apply revocation even where cancellation is warranted, conflating the correction of a past error in granting status with the response to new facts after recognition, thereby applying the wrong legal test and procedures, undermining due process and creating a risk of refoulement.

Zambia allows for the cancellation of refugee status once it becomes known that an administrative decision was made to grant refugee status which should not have been granted in the first place or refugee status has been obtained through fraud, false information or concealing information. It should be noted that refugee status can only be cancelled by the Refugee Status Determination Committee (RSDC) upon request by the Commissioner. Section 17 2017 Refugees Act provides that:
“(1) The Commissioner may request the Committee to cancel or revoke the recognition of a person as a refugee where there are reasonable grounds to believe that the person concerned—
(a) has committed an offence under this Act or any other written law;
(b) obtained the recognition through fraud, false submission of information or concealment of a material fact;
(c) should not have been recognised as a refugee; or
(d) has ceased to qualify for recognition as a refugee for the purposes of this Act.”

According to the UNHCR Procedure for Cancellation and Revocation of Refugee Status (2020), a person’s refugee status can be cancelled if it was awarded erroneously through the following acts:
“(a) misrepresentation or concealment of material facts with or without fraudulent intent;
(b) misconduct by the individual, including threats or bribery;
(c) error of fact or law during RSD determination; and
(d) misconduct or administrative error by UNHCR.”

There are two provisions relevant for cancellation – section 17(1)(b) and (c) 2017 Refugees Act. While section 17(1)(b) 2017 Refugees Act is in line with the established principles governing cancellation, section 17(1)(c) is vague since it does not refer to a standard or threshold for an error of fact or law, which would be necessary to safeguard the rights of the refugee concerned. In addition to the absence of established criteria for cancellation of refugee status and the absence of safeguards, there are no criteria to reopen the refugee recognition decision. The absence of time limits, an evidentiary threshold or exclusion of minor errors of fact or law increases the discretion of the RSDC while compromising the legal certainty of the refugee involved.

Furthermore, the involvement of the RSDC in the cancellation decision compromises the independence and impartiality of the reviewing body, while the final decision lies with the Commissioner, who has already granted refugee status initially. However, there is no provision which would result in a difference in treatment of refugees.

However, cancellation is subject to administrative justice principles. According to section 17(2)(a) 2017 Refugees Act, the RSDC must inform the person about the reopening of the RSD decision and provide the person with the opportunity to provide a written submission. However, there is no obligation to inform the refugee about the reason for cancellation, and the period of 14 days (section 17(2)(a)(ii)) is short considering the need for legal assistance or representation. After cancellation by the Commissioner for Refugees, the refugee must be informed in writing about the decision and provided with reasons for the decision (section 17(4)).

Where the status has been cancelled, the person against whom such a decision is made has the right of appeal to the Minister, who can either uphold or set aside the decision of COR (section 18(3)). The Minister can invite any institution or organization in Zambia to make a submission in the matter (section 18(2) 2017 Refugees Act). Considering the independence of the appeals body, the Minister is not independent from COR or the RSDC, since the Minister has supervisory power over COR and other representatives from entities that are members of the RSDC, such as the Zambian Police, the Department of Immigration and DNRPC (section 5(1)). Moreover, the Minister himself would probably not investigate himself and without a dedicated institution conducting the assessment of the appeal, there is a risk that the appeal is handed back to the initial Eligibility Officer at COR since there is no procedural safeguard regarding independence or impartiality. The applicant has no right to present any evidence or be heard or re-interviewed substantiating the appeal of the first-instance decision. Furthermore, the applicant is not informed of any timelines of the appeal and there is no grievance mechanism in case of a delayed decision by the Minister. Most importantly, there are no procedural or material safeguards regarding the consideration of the appeal by the Minister in the 2017 Refugees Act. There are no administrative fees or procedural requirements outlined for the appeal to the Minister. Nevertheless, there is no clear procedure to access the appeal and if the appeal needs to be lodged in person, this would disadvantage refugees in the settlements as they would need to travel to Lusaka.

When a person's status has been cancelled, refugee recognition ends seven days after the issuing of the decision or after the exhaustion of appeal and the person ceases to be considered a refugee, and the decision also extends to their dependents without further consideration (section 19(1) 2017 Refugees Act). While dependents can apply for refugee status again, there are no safeguards in case they were innocent under section 17(1)(b) 2017 Refugees Act and have an international protection need. Furthermore, section 19(3) 2017 Refugees Act mandates the Commissioner for Refugees in cooperation with the Department of Immigration to remove the person with cancelled refugee status from Zambian territory without any safeguards to prevent refoulement or reference to the non-refoulement provision under section 23, resulting in significant protection risks.