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.
Jeff Crisp of Refugees International (formerly head of UNHCR’s in house think tank) recently retweeted great article on the methodological and political troubles associated with refugee statistics. The article is 15 years old, and still incredibly current. It should be required reading for everyone who has any intention of talking about forced migration intelligently.
With that inspiration, let me resurrect a short note I wrote back in 2009 about a single dubious refugee statistic that irritated me throughout my career in the Middle East: The question of how many Sudanese (and, by extension, Sudanese refugees) live in Egypt. Here’s the note (and please understand that its references have not been updated since I originally wrote it):
How Many Sudanese Are There in Egypt? (2009)
For years, whenever the subject of Sudanese refugees in Egypt comes up, journalists, human rights groups and scholars have been making statements like this one:
Estimates of the number of Sudanese nationals in Egypt vary widely, ranging from 750,000 to 4 million.
No one has much interest in scrutinizing the basis of the claim, and many interests are served by repeating it. The claim of millions of Sudanese in Egypt serves government, which wants international support and sympathy for hosting migrants, and it serves refugee activists who want to gain support for their projects by making the refugee problem appear larger than it would on the basis of UNHCR numbers alone (officially, there are fewer than 50,000 registered non-Palestinian refugees in Egypt, around half of those Sudanese).
Where did the larger numbers come from? At the high end, these estimates would mean one in every 20 people in Egypt is a Sudanese national. Possible, but still quite a statement. This particular quotation appears in the American University in Cairo’s 2006 report on the Mustafa Mahmoud protest and massacre. It cites another AUC report, which says:
The Egyptian government sources quote usually a number raging between 3 and 4 million, with the Sudanese opposition groups indicating 2.2 million.
No references are given about where the government sources said this, but at least we know the source was originally official. Indeed, in 2006, the Egyptian ambassador to Sudan said in the press that there were more than 4 million Sudanese in Egypt.
But where does the Egyptian Government get this information from? The big numbers go back well before 2006. A Canadian Government document has references from 2000 estimating “2 to 5 million Sudanese in Egypt,” again with no explanation of where the numbers come from. The Carnegie Endowment has a record of discussions from 1999 citing an estimate of three million.
We know that there have been recent controversies about the number of Iraqi refugees in Egypt, with the government claiming more than 100,000, and academic and UN data estimating around one fifth that number.
I have been unable to find any original source for the “millions of Sudanese in Egypt” factoid, and if anyone knows its origin I would be grateful to know about it. But on the assumption that the source is unknown, it is important to ask why the “millions” claim is so widely repeated.The main point is that there are many Sudanese in Egypt, and that those who flee persecution or violence and seek protection at UNHCR are the minority.
There are also many Egyptian citizens who have Sudanese background. UNHCR’s registration figures may be a moderate undercount of the refugee population in Egypt, because there are a few forced migrants who don’t register, and there are other genuine refugees who have been errantly rejected by UNHCR in flawed refugee status determination procedures. But this undercount is offset by the fact that some refugees who are counted by UNHCR may have actually left Egypt (for Israel, Libya, Europe or home).
As a rough, working figure, I would put the non-Palestinian refugee population in Egypt at close to the UNHCR figure. But are there millions of Sudanese refugees in Egypt? It’s a big claim, and I think people should stop making it until someone can identify where it comes from, and we can assess whether it is actually true.
Earlier this month, Africa Middle East Refugee Assistance’s Egypt program announced that it would merge with a younger Cairo-based organization, the Egyptian Foundation for Refugee Rights (EFRR).
One has to hope for the best. AMERA-Egypt has in many ways been the flagship of the movement to expand legal aid for refugees in global south, serving as a model for organizations in South America, the Middle East, Africa and Southeast Asia. But while it’s programs refugee rights programs have been pathbreaking, it has always been difficult for AMERA to develop a stable institutional foundation.
For the program now known as AMERA-Egypt, this will be the third major change in institutional structure since Prof. Barbara Harrell-Bond began having young lawyers and interns advise refugees in vacant American University in Cairo office buildings some 13 years ago. Earlier this year AMERA sounded the alarm about a funding crisis.
EFRR and AMERA are describing the merger as an effort to build a “strong, unified” refugee rights organization. But a country as large as Egypt should easily be able to support multiple organizations. How many immigrant legal aid programs are there in New York or Los Angeles?
The root of the problem is familiar to human rights activists in less than democratic countries. While legal regulation of non-profits and charities in democracies is designed to foster a vibrant, responsible civil society, more repressive governments have learned that cumbersome regulations of NGOs can be a quiet, technocratic, and largely invisible means of keeping human rights and other opposition groups weak. This is exactly what Egypt has done.
EFRR and AMERA promise that services for refugees will not be interrupted. The idea is for AMERA to become a project of EFRR. But there are no guarantees, as AMERA’s own history illustrates. After leaving university confines in 2001, the nascent refugee legal aid program spent three years as a project of the Egyptian Organization for Human Rights. AMERA emerged when this marriage broke up in 2004.
Nevertheless, collaborations much like this one have proven successful in several other countries where refugee legal aid has taken root. The Refugee Legal Aid Project in Istanbul, one of the strongest such organizations anywhere, is a project of Helsinki Citizens Assembly, a larger human rights organization. As much as anything else, AMERA is a story of resiliency.
One thing I can say from experience: Every hour that organizational leaders are forced to spend on internal management problems is time taken away from building better programs for refugees. But despite a great deal of internal turmoil over the years, AMERA has always found a way to return to its mission. And that alone is reason to be optimistic.
Among the remaining areas of dispute about due process standards in UNHCR refugee status determination, disclosure of evidence remains the most difficult. UNHCR policy still maintains that UN offices should withhold from asylum-seekers the central evidence in their own refugee cases: their interview notes.
So I hope someone at UNHCR is paying attention to the settlement just reached in federal court between immigration lawyers in San Francisco and the U.S. Citizenship and Immigration Service. Under its terms, the U.S. Government must provide asylum seekers who ask with the “notes taken by asylum officers to document their interviews with asylum applicants.”
This is awkward for UNHCR. On the one hand, the UN Refugee Agency advocates for governments to give asylum-seekers equal access to information and evidence. On the other hand, it sets a lesser standard for its own field offices.
To be clear, the American asylum interviews are not a perfect analogy to UNHCR RSD, because they grant asylum by discretion, with rights above and beyond what is required by international law. In the U.S., refugee protection under international law is adjudicated in Immigration Courts, where applicants have long had access to hearing transcripts and can see all of the evidence submitted by the government to oppose their claims. A U.S. appeals court has found that immigrants in deportation proceedings should normally have access to the entire “A-File” that the government holds on non-citizens (though the Department of Homeland Security continues to resist enforcement of this ruling.)
But the U.S. Asylum Office does bear some significant similarities to UNHCR RSD in that it uses a non-adversarial interview approach, in which the interviewer takes notes of what is said. This is exactly what happens in UNHCR RSD interviews. If U.S. asylum officers can share their notes, why can’t UNHCR staff?
This is more evidence that UNHCR’s evidence withholding policies could not exist without UN immunity. We can’t easily take them to court like the folks in San Francisco, and so we must rely on efforts at persuasion with precious little leverage. But that shouldn’t stop UNHCR officials developing policies that they could actually defend in an independent tribunal. UNHCR need not hide behind its immunity. UNHCR could be taking the lead, or rather, leading by example. Instead, we are begging UNHCR just to catch up.
While international attention tends to focus on the countries where the greatest number of refugees are found, some individuals find their way to far off places through a mixture of individual initiative, happenstance, airline routing and visa rules. Asylum Access’ Anna Chen has a great post about Ali, a Palestinian refugee who fled the Syrian civil war all the way to Thailand.
When war broke out between the rebels and the military, Palestinians were forced to flee alongside Syrians. But unlike their Syrian neighbors, travel was difficult because most Palestinian refugees did not have a passport but a travel document that Ali tells us is recognized by few governments. With most embassies closed, Ali says Malaysia and Thailand were among the few that remained open who were able to provide visas.
Because of stories like this, cities like Bangkok often host a smattering of refugees from as far away as West Africa. They are highly visible and yet easily forgotten because they are exceptional. If you walk into a meeting with humanitarian officials of a donor government and say you want to talk about refugees in Thailand, the officials will assume you mean Burmese who live in camps in the north.
This can work to the advantage of a few refugees, if - and this is a big if – the exceptional urban refugees from far away get an inside track to resettlement while the larger group is warehoused. But it is usually a problem. With smaller numbers, refugees have fewer social connections of their own from which to find support. They are easily forgotten at planning sessions.
Most glaringly, refugees who don’t fit the high profile patters are typically less attractive to donors, and get treated differently than their immediate neighbors. The Atlantic has a great article about this, focusing on Sudanese in Jordan whose plight gets far less attention – and less assistance – than the influx of Syrians.
Many Sudanese in Jordan wait three months just to get their first appointment with UNHCR. As asylum seekers, they can then wait for years before their refugee status is determined, with no means to work and no aid in the meantime. … Syrians, meanwhile, speed through or skip through this process, receiving refugee status and help immediately because they have been declared prima facie refugees—members of a mass influx from generalized violence for which UNHCR doesn’t need or have the capacity to conduct individual evaluations.
The authors ask: “What makes an asylum seeker from Syria needier than one from Sudan?” It’s a trick question, of course.
Different situations call for different responses, but there’s more to it than that. Donations, and sometimes resettlement programs, follow crises in the news because governments love to announce that they are addressing a high profile catastrophe. But there is less political gain in helping refugees whose plights are less interesting to the media. Given that Syrian refugees are suffering considerably, imagine the plight of those who are not the current refugees of the month.
Here’s a frightening report about a Rwandan refugee, Joel Mutabazi, who was recognized as a refugee by UNHCR and later kidnapped from Kampala and taken back to Rwanda.
Rwandan authorities accuse him of having linked to “genocidal forces,” but UNHCR publicly disputes the allegations. UNHCR’s representative in Uganda was quoted in The Times of London: “Rwandan refugees are one of the highest risk groups among refugee communities in Africa.”
The incident highlights how limited UNHCR’s protection tools often are for refugees who face the most immediate threats to their physical safety. While UNHCR can recognize that someone is in danger, it usually must rely on host governments to provide physical security for refugees. The case also is likely to add continuing fuel about whether Rwandan refugees should be sent home in any circumstances, a debate I have written about previously.