The number of people applying to UNHCR for individual refugee status determination grew by 115,276 from 2011 to 2013. That’s a huge increase – 144 percent to be exact. But where is this happening, and who is submitting these applications?
The answer to these questions reveals a lot about the role that RSD plays in international refugee policy. The top three refugee populations worldwide in 2013 were Afghans, Syrians (whose numbers passed the 3 million mark in late August), and Somalis. But while these nationalities do apply to UNHCR RSD in significant numbers, they are not primarily responsible for the big upsurge in UNHCR RSD.
This is because only a small fraction of these large refugee populations go through individualized RSD. It would be impossible to adjudicate so many. Group-based status recognition fills the gap. So, for example, Lebanon hosted close to a million Syrian refugees by the end of 2013, but UNHCR’s statical reports list just 547 having submitted individual RSD applications. The others probably weren’t allowed to apply, or would have had nothing to gain.
So, where is the surge happening, and who is applying? Nearly half of the increase in UNHCR RSD is attributable to just two groups: Myanmarese in Malaysia and Iraqis in Turkey.
|2013 Applications||Growth Since 2011||Percent of total growth|
|Myanmarese in Malaysia||50,330||36,629||32%|
|Iraqis in Turkey||25,280||17,368||15%|
Although UNHCR RSD takes place in around 60 countries, 20 of those offices received fewer than 100 applications a year, while only 20 received more than 1000. UNHCR RSD is spread across multiple continents (especially Africa, the Middle East and Asia). But it is also quite concentrated in a relatively short list of offices. Malaysia and Turkey accounted for half of all RSD applications to UNHCR last year. The top 10 offices combined accounted for 85 percent.
UNHCR’s Top 20 RSD Offices (by number of applicants)
|Country||2013 Applicants||Increase since 2011|
|Hong Kong SAR, China||1,676||886|
|Syrian Arab Rep.||1,193||-1,553|
Because significant UNHCR RSD operations occur in regions so far apart, no single refugee crisis accounts for the UNHCR RSD surge. Instead, UNHCR conducts RSD in many countries that are positioned to receive asylum-seekers from multiple trouble spots. Consider the number of countries in the Middle East on the UNHCR RSD list. These countries today are receiving Syrians and Iraqis. But before war tore apart either of those countries, these same UNHCR offices were processing large numbers of cases from Iran, the Horn of Africa, and even Central Asia. In addition to Iraqis, UNHCR-Turkey received 8726 Afghan applicants and 5897 Iranians in 2013.
No single refugee crisis accounts for the UNHCR RSD surge. Instead, UNHCR conducts RSD in many countries that are positioned to receive asylum-seekers from multiple trouble spots.
Other major RSD applicant groups around the world included Afghans in Pakistan (5087 applicants) and Indonesia (3392), Ethiopians in Yemen (4113), Iraqis in Jordan (4045), Sudanese in Egypt (5317), and Myanmarese in India (3362).
The surge in applications puts considerable strain on UNHCR offices, and on asylum-seekers who may face longer waits to have their cases decided. These stresses are likely to heighten the inherent tension between efficiency and fairness in RSD, a basic quantity v. quality dilemma that impacts nearly all RSD systems at some level. In coming posts, I will look more closely at what the statistical data can tell us about this strain, and about how UNHCR actually decides refugee cases.
The number of people applying for individual refugee status determination at UNHCR offices around the world surged in 2013, with UNHCR receiving RSD applications for 195,376 people. I have data on UNHCR RSD going back to 1998, and the number of applicants had never approached this level before during that period. In previous years the number had hovered around 100,000, and had dipped below 50,000 in 2002.
The number of applicants climbed in 2012 as well, to 110,698, up from 98,800 in 2011.In my next statistics post, I will report on where this surge is happening. But let me here just try to capture the global scale of what is happening.
With this surge, UNHCR is once again the world’s largest RSD adjudicator, exceeding Germany, the United States and South Africa in new applications. UNHCR now handles more than 20 percent of all individual RSD applications worldwide, compared to 11 percent in 2011.
NB: In UNHCR’s Global Trends 2013 report, in Chapter VI, slightly higher figures are given for applications to UNHCR RSD, and a slightly lower percentage is given for UNHCR’s share of all RSD. The reason for this appears to be that UNHCR includes both appeals and first instance applications, which produces slightly different figures. For more explanation about this, see my caveats post.
The UNHCR report states, “With 109,600 new asylum applications registered during 2013, Germany was for the first time since 1999 the world’s largest single recipient of new asylum claims.” This seems to conflict with my statement that UNHCR is the world’s largest RSD adjudicator, but there is in fact no substantive disagreement. Rather, this is a confusion of terminology. UNHCR is correct in the sense that there were more individual RSD applications in Germany than in any other country. But UNHCR globally (all offices combined) received more applications than Germany did, so that UNHCR was the world’s largest RSD adjudicator.
By analogy, McDonald’s is the largest restaurant chain in the United States. But no single McDonald’s branch is the largest restaurant in the US. For purposes of this explanatory note, I have indeed analogized UNHCR to McDonalds. Let me apologize to UNHCR for any offense taken, and state clearly that I hold UNHCR in much higher regard. Nevertheless, if you are into trivia and want to know about the largest restaurants in the US and the world, click here.
Over the next few weeks I will provide statistical data and analysis about UNHCR RSD in 2012 and 2013. But before we get to that, let me provide some general notes of caution about the data.
The data I will be presenting come from two UNHCR reports, the 2012 Statistical Yearbook and Global Trends 2013. These are the best reports we have about what is going on in RSD globally, both with governments and UNHCR. I take the data and re-analyze it so as to produce a clearer picture about UNHCR RSD.
But the data isn’t perfect. For starters, UNHCR gets government RSD data mainly from governments themselves, and they might make a mistake or two. Second, even assuming there are no basic errors in the data, there’s no standard agreement on how to categorize the data. Even UNHCR offices are inconsistent. And this creates some messiness.
Person v. Cases
One of the things I am most interested in is how many people apply to individual RSD systems. But getting this number is not as simple as it seems. For one, there is a difference between reporting the number of persons who apply versus reporting the number of cases, since a single case could include multiple family members. UNHCR has improved its reports by listing whether the data from a certain country is reporting persons or cases. But that simply makes the inconsistency more transparent.
Most UNHCR offices report persons, but one (South Sudan) reports cases. Now, South Sudan is a very small RSD operation, so this does not throw things off too much. But there are a number of governments that report cases, not persons. If we knew with confidence the average number of persons per case in each country, we could correct for this. But I don’t know that data, and my intuition is that it is likely to vary according to differing migration patters and different RSD systems. The nut of this is that the aggregate government RSD data is likely an under-count, but I can’t say by how much.
New Applications v. Appeals
Another problem is that RSD systems typically have first instance and appeal levels (they should, anyway). But if we want to look at recognition rates or the number of new applications, we don’t want these mixed together. Unfortunately, a lot of governments and UNHCR offices do mix them together. This means that for some large UNHCR RSD offices (including Egypt, Jordan, and Pakistan), the data includes both first instance and appeals cases. This is also true for some governments, such as Austria, Burundi, Ecuador, Israel, and Montenegro, among others.
This presents me with two unappealing choices. I could exclude these countries from the data, but then we would be completely ignoring some very significant RSD systems. Or, I could include them, knowing that I am in effect double counting applications (i.e when a person appeals, they will be counted twice). I have chosen the latter, since I would rather over-count something important than ignore it. But understand that this is an error either way.
Oh, the USA
Let’s just agree that the data reported for the United States is rough. It includes both an over-count (or two) and an under-count. We could assume that they cancel each other out, but you know what folks say about assumptions (and they would be right).
A person can start an asylum application in the United States either through the Asylum Office or in Immigration Court, which is part of the Executive Office of Immigration Review (EOIR). But if they start at the Asylum Office and lose they are usually referred to the Immigration Court, where they can start their application again. But some people start their asylum cases in Immigration Court, skipping the Asylum Office part.
UNHCR reports two lines of data for the United States. One is for the Asylum Office, and the other for EOIR. But the EOIR data will naturally include both brand new applications, as well as people referred by the Asylum Office — creating an over-count.
Also decisions by the Immigration Court can be appealed to the Board of Immigration Appeals, which is also part of EOIR. Thus, the EOIR data in UNHCR’s report might include appeals to the Board of Immigration Appeals; it is not clear if it does. So, that’s an additional possible over-count.
To make this even messier, the data from the EOIR is for persons, but for the Asylum Office it’s cases. Thus, we have an undercount.
What good are messy statistics?
In my opinion, it’s better to have a messy, somewhat distorted picture of what is happening in RSD than to leave it completely in a black box. But it is essential to know that the data is messy, and that what we are getting it is a rough snapshot only. It’s a bit like the famous map of the London Tube. It’s not to scale, and it is distorted in certain ways. But it’s still extremely useful in portraying the entire system in one comprehensible image, and it can get you where you want to go. I’m hoping for something similar with the data I am about to report, but it is essential that everyone understand what we are looking at here. It’s not perfect, but it’s the best we have.
When I worked in Egypt, where UNHCR RSD was a major focus of our legal aid program, a refugee told us, “The blue card is not enough.” This haunted me, because a blue card (which includes a non-work residence permit) was all we could get refugees through refugee status determination.
“The blue card is not enough” is an indictment of the longstanding tendency for the field of refugee law to focus on just two things: the refugee definition and its application (a.k.a. RSD), and the principle of non-refoulement. But in too many places, everything else refugees need to rebuild their lives has been forgotten in practice.
This may be slowly changing, and Asylum Access has just published an important new report moving in this direction, about refugees’ right to work. Based on a survey of NGOs and in depth country profiles, it finds a wide range of legal, bureaucratic and practical obstacles preventing refugees from realizing their economic potential.
I’ve been away from updating RSDWatch for too long, and I apologize. Complaints have been duly noted, and new updates will be coming soon.
But before I return to the subject of refugees and UNHCR, let me take
advantage of this space to offer one of many remembrances of a great man who had a tremendous personal and professional influence on me. Ahmed Seif al-Islam Hamad, one of the giants of human rights activism in Egypt and my first mentor, died this week.
A Communist in his youth, Ahmed Seif was imprisoned and brutally tortured in 1983. He spent five years as a political prisoner, and used the time to complete a law degree.
He famously defended everyone’s rights, no matter their unpopularity, no matter the political winds. In 2001, Egyptian police arrested dozens of people at the Queen Boat club in Cairo and accused them of being gay. They were brutally tortured, but some of Egypt’s largest human rights organizations ran away from the case, fearing the unpopularity of defending homosexuality. Ahmed Seif defended them.
He also defended Islamists and especially members of the Muslim Brotherhood throughout his career, although he was himself staunchly anti-religious. He recalled that early in his career, “The Communists would say secretly, ‘It doesn’t matter if Islamists are tortured.’ And the Islamists would say, ‘Why not torture communists?’” Ahmed Seif defended all.
I met him for the first time in 1998 at the Center for Human Rights Legal Aid, where I spent seven months as a legal intern. He was my supervisor when I worked on a refugee case for the first time. He was the first person to teach me, to really teach me, what it meant to be a lawyer, and especially what it meant to be a human rights lawyer. When he read the first project that I had done for him, he brought me a cup of strong Egyptian tea, lit a cigarette, handed me my papers back, and said, “You have given us beautiful words. But you have proven nothing.” I revised, and I got better.
I mostly remember him laughing. He seemed constantly able to find something to laugh about. He made sure to show me things that would be difficult for an American kid in Egypt to see without a guide. He took me to an Egyptian street wedding in a Cairo slum that was not even marked on most maps. He took me to a family home in the countryside, where his wife, Leila Soueif, an activist and mathematician, taught me how to make Egyptian rice. I remember Ahmed Seif chasing chickens in the yard. He liked to remind people that he had grown up in the Nile Delta. I remember him serving me watermelon, and then joking that the quality was low. “I can say this,” he said, “because I am a farmer.” At the end of my internship, he drove me to the airport in the dead of night, so that I would not have to pay for a taxi.
Ahmed Seif could have gone into exile, but he stayed in Egypt and as far as I know he travelled very rarely by the standards of human rights activists. I am not sure I have ever met a man who loved his country so much. But yet his thinking knew no borders. He would connect a new development in Egypt with a trend in the United States, India, South Africa. He would sometimes get lost in thought, then make a sudden observation about a new legal question or political dynamic, and would inevitably conclude: “We must do research.”
He taught me two critical lessons about human rights law for which I am especially grateful.
First, despite a lifetime of pain at the hands of Egypt’s dictators, Ahmed Seif told me to always be surprised by injustice. Not really surprised, of course. We know that oppression is, objectively, common. But once we treat it as normal, we lose our ability to be outraged. We become part of the problem.
Second, Ahmed Seif told me once about the Egyptian Constitution: “Our law is not perfect. But we try to take it seriously.” I have always tried to take this heart. Every lawyer everywhere knows that our legal systems are riddled with problems. They never quite live up to the ideals they espouse. But law – even flawed law – embodies our highest aspirations as a civilization. The idea that we have rules, rights and remedies.
Our law is not perfect. But we try to take it seriously.
When I worked for Ahmed Seif in 1998, my wife and I hosted an American Thanksgiving dinner at our apartment in Cairo. Ahmed Seif brought his oldest child, Alaa, who was 17. I also remember his middle child Mona, who was a young teenager, and his youngest, Sanaa, who was in elementary school. Sanaa used to come to the office and run around the dusty desks in the afternoon. Today, she is behind bars for attending a protest. So is Alaa, who was sentenced to 15 years. They are political prisoners like their father before them.
Earlier this year, Ahmed Seif said at a press conference: “Alaa, I wanted you to inherit a democratic society that guards your rights, my son, but instead I passed on the prison cell that held me and now holds you.”
For now, their family stands out as a personal embodiment of the tragedy of the Egyptian revolution. But I know, eventually, Ahmed Seif would still find a reason to laugh, an ability to be surprised, and he would tell everyone to keep taking law seriously.
I thank you.
UNHCR’s in-house think tank has published a critical new report about how – and to some extent, if and when – UNHCR should help states build their own refugee status determination systems.
Transitioning from UNHCR RSD to government RSD has long been a UNHCR goal, and has occasionally been offered as an excuse for not doing more to improve the agency’s own RSD operations. But how and under what conditions this should happen has been under studied.
Just one example: I have just recently returned from teaching in Israel, which a decade and a half ago was hailed as budding success in beginning to set up its own asylum system, and executing the transition away from UNHCR RSD. Today, the results are, to be most charitable, mixed at best.
The report is 78 pages long. It will take me some time to digest it and write a reaction that does it justice. But I do not want to delay encouraging everyone else who is concerned about refugee rights, especially in the global south, to read the report for themselves.
The report, by UNHCR’s Policy Development and Evaluation Service, is here.
In February UNHCR published new Guidelines on Temporary Protection or Stay Arrangements (TPSA), a document that is obscure where it should be clear, explicit and broad where it should be narrow and conditional. It has the potential to make refugees’ lives worse.
Temporary protection, and its close cousin, prima facie recognition of refugee status, has a long history but also urgent current importance (see, e.g., Syria). These are essential mechanisms to provide immediate status to refugees in crises. But they are also useful for governments that want to avoid full protection of refugee rights. Because of this double edged sword, UNHCR could do much good by laying down clear guidelines. But it has probably made matters worse.
“Temporary protection” is a badly abused term in refugee policy, used to refer to a wide range of very different things. Sometimes it is used to refer to protection of groups above and beyond the international definition of a refugee (example: USA). At the other extreme it is used by governments to re-label confinement and detention of refugees and to defer their access to a stronger status (example: Israel). UNHCR offices have also used temporary protection to freeze cases by nationality (example: Sudanese in Egypt), cutting refugees off from access to resettlement and sometimes social welfare assistance.
UNHCR’s new Guidelines seem to pursue a reasonable goal: “TPSA’s are complementary to the international refugee protection regime, being used at times to fill gaps in that regime as well as in national response systems and capacity, especially in non-Convention States.” But the rest of the Guidelines do not back this up. They are not limited to non-Convention States. And there is a vast difference between gaps in the international refugee protection regime – say, for people fleeing natural disasters – and a government that simply wants to escape from its obligations to refugees by denying them access to asylum.
At one point, UNHCR says temporary protection should be “time-limited.” Good, but UNHCR never gives any guidance about how much time. A year? 5 years? 60 years?
UNHCR provides four criteria that should bring temporary protection to an end. None of them include a set period of time, nor a right for the individual to ask to have her case assessed against legal criteria for a better status, nor a condition that if it should become practical to conduct individual determinations fairly that a government should do so.
Instead, UNHCR offers this: “Although the determination of an exact duration for a TPSA may not always be possible because of the complex fluid nature of the movements and their root causes, States may agree to set timeframes, to be extended as conditions persist.”
I’m not sure what that means, except that UNHCR seems to accept that “temporary” might sometimes go on indefinitely, because that’s how long the root causes of forced migration sometimes persist.
Since people might be stuck in “temporary” protection effectively forever, it makes a great deal of difference what rights they will have. Temporary protection should not be used where it would deny refugees the rights to which they are entitled under law. UNHCR seems to agree with this premise, but also seems to have put in remarkable effort to obscure it. In order to understand that this is in fact UNHCR’s position, I had to look at the eighth and ninth bullet points under paragraph 8, then follow footnotes 3, 5 and 6, and then I had to have background knowledge about the documents referred to therein.
I’m still not completely sure I have understood UNHCR correctly, though I hope so. And even if I am right, I’m not sure deputy assistant ministers of interior and overstretched administrative judges will necessarily understand this.
So, what rights will someone with temporary protection enjoy? The best part of the Guidelines may be that it does clearly call for freedom of movement, in contrast with the various forms of detention and forced encampment employed by many governments. Among other things, UNHCR calls for protection from arbitrary or prolonged detention, a “designated period” of authorized stay (though UNHCR again doesn’t say how long), and “self-sufficiency or work opportunities.”
It is a puzzle why UNHCR cannot call for a more concrete timeline for social and economic rights, because there is one readily available in the Convention that UNHCR is mandated to safeguard. To cite just one example, according to the Refugee Convention a refugee should be able to seek wage earning employment after three years.
For some reason, UNHCR cannot bring itself to call explicitly for the right to work, which is much more substantial — and less vulnerable to exploitation — than “work opportunities.” Even prisons offer “work opportunities.”
Where UNHCR seems willing and able to speak with clarity, the specifics are worrying. According to the Guidelines, temporary protection is a good response to “complex or mixed cross-border population movements, including boat arrivals and rescue at sea scenarios.”
Why can’t individual refugee status determination be used in such situations? Boat arrivals don’t necessarily mean large numbers. If governments worry that a migration is “mixed’ (meaning it includes both refugees and non-refugees), the logical response should be to examine the individual cases. The problem is that governments sometimes don’t want to do this, because they might have to acknowledge that some of the arrivals are actually refugees.
Let me dwell for a moment on the idea that boat arrivals merit diversion to temporary protection. Since when does a refugee’s rights under international law depend on her mode of transport? Why should a state be able to divert an asylum-seeker to temporary protection just because she chose to take a boat rather than a bus?
This is the Paul Revere doctrine of international refugee law. There is one legal regime if they arrive by land, and something else if by sea. This is music to Australia’s ears, I’m sure, but I’m not sure how it makes sense as a matter of law.
[NB: I'm not sure where air travel falls here. Is an airplane a "ship," analogous to a boat, as in maritime law, or is there something specific about water? And about water, is the ocean the same as a river? And if arrival by sea justifies temporary protection, how will we know when temporary protection can end? So long as the sea remains full of water, does the root cause persist? I could go on ...]
These are not the kind of Guidelines that can stand up to any rigorous analysis. A sophisticated court might be able to see this. But not all judges will, and may look to UNHCR to signal whether certain policies are legitimate. Regrettably, UNHCR has provided considerable fodder for recalcitrant governments to cite when they want to marginalize uninvited asylum-seekers.
It is not usually UNHCR’s fault that refugees are left in limbo for years on end in “protracted refugee situations.” But it is UNHCR’s job to remind the world how shameful this is, and how painful for the people affected. It is UNHCR’s job to remind governments of the norms they have signed up to, which if applied would do a great deal to mitigate this pain. If UNHCR obscures these norms, or legitimizes the means by which governments slide out of them, then UNHCR is not doing its job, and it might actually be making life worse for refugees.
So, let’s please agree to call these Guidelines a rough draft. I’m sure the intentions were good. But please revise.