Africa Middle East Refugee Assistance’s Egypt office is scheduled to run out of funds in less than two months. Its British-based board has issued a notice of closure to take effect at the end of May if no additional funds are found.
For a decade, AMERA has been at the vanguard of the movement to introduce refugee legal aid into the global south. Operating as a general legal aid service organization, it provides refugees assistance in accessing medical and social services, administrative and security problems involving the Egyptian government, and refugee status determination with UNHCR. It has also been a pioneer in integrating psychosocial services with more traditional legal aid.
The organization was founded in 2003 by Prof. Barbara Harrell-Bond from pilot projects that were previously housed at the American University in Cairo and the Egyptian Organization for Human Rights. It has helped inspire the growth of legal aid programs in Turkey, Lebanon, Thailand, South Africa, Hong Kong, Ecuador and other countries. A long list of leaders of refugee legal aid programs in Latin America, Africa and Asia started their careers at AMERA-Egypt or came to AMERA for training.
I was a lawyer with the early versions of the program (before if was called AMERA), back in 2001 and 2002, and returned later as director. I also saw refugee life in Egypt in 1998, before AMERA, and so I know the vacuum that existed before. It is difficult to imagine promoting refugee rights in Egypt in the future without AMERA’s existence. It’s important to note that in 2000 and 2001, UNHCR’s Cairo office accepted the idea of legal aid in its RSD procedures at a time with many other UNHCR offices rejected it. The relationship between AMERA and UNHCR-Cairo was a critical basis for UNHCR’s eventual global recognition of the right to counsel in its RSD procedures.
In an appeal to supporters, AMERA suggested that donor focus on new initiatives and promotion of democracy in response to the Arab Spring has made it difficult for AMERA to attract funding. AMERA tends not to bring high profile cases in court, it rarely publishes reports, and its website is rudimentary. AMERA is not on Twitter. AMERA focuses instead on defending human rights in practical terms, by helping refugees get recognized legal status, get a medical referral in an emergency, helping their children get into school, and so on. It defends human rights one case at a time, helping otherwise marginalized people speak for themselves with the institutions that wield power over their lives.
One of my favorite stories when I was the AMERA director had to do with a bureaucratic problem between UNHCR and one of its partners that led to a few months of delay in providing subsistence money to Cairo’s most vulnerable refugees. The human impact was that dozens of families were threatened with eviction because they couldn’t pay their rent. AMERA’s staff kept them in their apartments by making phone calls to the landlords, and explaining that the money would come, they just needed to wait. This kind of human rights advocacy is so simple and so low profile that it is far too easy to forget how rare it is, and how heroic it is in the lives of the affected families. AMERA is, at its heart, a human rights, legal aid organization. But it is the kind of human rights organization that knows that sometimes the best way to defend the international human right to housing is by just making a phone call.
This is familiar work to lawyers and social workers in legal and social services organizations in countries with well-developed civil society and justice systems. But it remains a novel concept in many countries, and not an easy sell to donors who want to make a high profile splash after a revolution. And, while AMERA has innovated ways of using volunteers alongside paid staff, delivering legal aid is expensive. Worse than that for funders, legal aid is a continuing need, rather than a one-off program that can claim a huge impact from a non-renewable grant. What AMERA delivers is tangible human rights for real people – the kind of human rights that gets people out of prison, gives them a place to sleep and teaches their children to read. It should be a model for activists interested in renegotiating how average people relate to authority in the Middle East.
Donations to AMERA can be made online at this link.
In what appears to be a strongly worded statement, UNHCR has asked the Israeli High Court to strike down the country’s Infiltration Law. The 2012 law which imposes harsh prison sentences on refugees and other migrants who cross Israel’s borders, especially targeting Africans who are smuggled or trafficked over the Sinai. According to quotes carried in the Israeli newspaper Haaretz, UNHCR told the court:
UNHCR considers that the above-outlined provisions of the Law are not in conformity with international human rights and refugee law standards, including the 1951 Convention and the 1967 Protocol. … Beyond an initial security screening, the automatic and continued detention of refugees and asylum-seekers classified as ‘infiltrators’ based on the sole reason of having entered Israel irregularly would not meet international standards. That is, any extension of detention beyond an initial security screening for a particular refugee or asylum-seeker would only be lawful if it is assessed in a proper procedure to be necessary, reasonable and proportionate measure to a legitimate purpose in their individual case.
Israel’s parliament enacted the Infiltration Law in response to a wave of asylum-seekers arriving through Egypt over the last five years, many from Eritrea and Sudan. Israel has constructed detention camps and a wall along its southern border. It has been faulted for preventing asylum-seekers from entering and for deporting them in violation of the principle of non-refoulement.
“UNHCR is of the opinion that the outcome of this petition will have far-reaching implications for the protection of refugees and asylum-seekers, in Israel and internationally.”
The Israeli government began taking over refugee status determination from UNHCR more than a decade ago, and has received training on RSD from UNHCR, the US Government and humanitarian organizations. But its RSD system recognizes less than 1 percent of applications, and systematically prevents asylum-seekers from countries most likely to generate valid refugee claims (like Eritrea) from having their cases heard. Last month human rights groups sounded the alarm about 23 Eritreans threatened with deportation from Israel without having been allowed to apply for asylum.
At the end of February, UNHCR demanded Israel provide an explanation for the reported return of around 1000 Sudanese through a third country. The government claimed the returns were voluntary. UNHCR’s representative said in an interview that many allegedly voluntary returns from detention centers were effectively forced because “there is no voluntary return from prison because there is no free will.”
Making submissions to court insisting on adherence to international refugee law is common for UNHCR in many countries, and this is not the first time UNHCR has done so in Israel. But it nevertheless is a stark contrast from a decade ago, when UNHCR pursued a strategy of behind-the-scenes diplomacy in Israel and was represented in Jerusalem by a former Israeli diplomat. For many years Israel received fewer than 1000 asylum requests each year. In 1995, Israel’s High Court issued an initial decision recognizing the principle of non-refoulement. In 2001 Israel took its first steps toward operating its own asylum-systems. But the country did not put in place any firm legal groundwork to receive refugees, relying on ad hoc solutions often worked out with UNHCR for particular groups or individuals.
Now, with close to 50,000 refugees in the country, the ad hoc system has long ago given way to harsh legislation, which is now in the hands of the High Court.
My post about UNHCR-Bangkok abridging the right to counsel touched a nerve with some because I was dismissive of UNHCR’s explanation that the Thai Government won’t allow them to involve legal representatives in RSD interviews. My skepticism has a lot to do with the specific record of the UNHCR office in Thailand, and the risk that local staff can use this kind of excuse to avoid reforms for which they have little enthusiasm to begin with. But it does raise an important question.
What should UNHCR do when a host government forces a UNHCR office to consider deciding refugee status cases without the normal procedural safeguards? This will often happen when an asylum-seeker is detained and awaiting deportation, for example.
In situations like this, doing RSD, even compromised RSD, might allow UNHCR to get some refugees to a more protected situation, whether that means out of detention or even resettled to another country. It would be absurd to ask UNHCR not to do that. But these benefits extend only to those asylum-seekers who are recognized as refugees.
We also need to worry about those who are rejected by UNHCR through these compromised procedures. In these settings deportation is often imminent, and with a RSD rejection the full moral authority of the UN Refugee Agency will be invested in legitimizing the expulsion.
The problem in these situations now is not that UNHCR goes forward with assessing the cases. They should. The problem is that under pressure UNHCR will often treat procedural safeguards as a luxury to be easily discarded, rather than as a risk to human safety. Yet every time UNHCR agrees to conduct an interview in detention, under unusual time pressure, without quality interpretation, without legal advice, or without a full appeal, it is increasing the risk that someone in genuine danger will be deported with UN blessing. This is wrong, legally, practically and morally.
The solution may be in being more explicit about what is going on in these cases. Compromised RSD cannot substitute for fair RSD anymore than a tent can substitute for an actual house. But it can still be useful in exigent circumstances.
When the only option is to compromise on procedural safeguards, we should call it something different, perhaps emergency screening, or “screening pending RSD.” UNHCR must be clear that this is not the real deal. The purpose of the screening is to quickly identify clear refugees, and to get protection to those who can be protected.
But it cannot be the purpose of such streamlined procedures to eliminate anyone. If UNHCR has doubts about a case in an abridged procedure, it should not deny the refugee claim. Instead, UNHCR should designate these cases as needing further investigation, and the people should still be classified by the UN as asylum-seekers. Which means that if the government goes ahead with deportation, everyone should understand that it is violating international law.
If you want to know why legal aid groups are sometimes skeptical about whether UNHCR is actually committed to fairness in the way it makes decisions about the lives of refugees, consider its office in Thailand.
As Human Rights Watch reported in September, UNHCR-Bangkok does not permit asylum-seekers to have legal representation in refugee status determination, in violation of UNHCR’s Procedural Standards. This has been going on for a long time, and has been well-known by UNHCR headquarters in Geneva.
HRW quoted refugee advocates in the region:
“Communication between UNHCR in Thailand and local legal service providers is sometimes strained,” said Anoop Sukumaran, coordinator of the Asia Pacific Human Rights Network. “Legal aid providers are not allowed to be present during UNHCR’s RSD procedures and often don’t know what is happening with their clients’ cases.” … UNHCR’s Procedural Standards for Refugee Status Determination under UNHCR’s Mandate state, “The legal representative will have the opportunity to make brief submissions at the end of the RSD interview…and should promote complete and reliable disclosure of the Applicant’s claim.” However, Michael Timmins, Legal Services manager at Asylum Access, told Human Rights Watch, “Legal representatives are not permitted to attend [RSD] interviews with claimants.”
A valid excuse, or bureaucratic deflection?
UNHCR-Thailand offered HRW a peculiar explanation for its violation of refugees’ right to counsel:
In commenting on an earlier draft of this report, UNHCR said, “UNHCR has been informed by the authorities that since UNHCR conducting of RSD is merely tolerated, other entities cannot be allowed in this process.”
It’s worth asking why a UNHCR official asked the Thai government for permission to allow asylum-seekers to have legal assistance in the first place. One might wonder if a UNHCR official, resistant to involving legal aid in RSD, deliberately asked the government in order to get a negative answer.
The reality is that some UNHCR protection officers do not see much value in providing more due process in RSD. They are confident in their ability to make the right decisions, and do not see what the value would be in having a lawyer involved, or a stronger appeal process, or a chance for more scrutiny of the evidence, or — and this is probably be the real point — a chance that someone might find a flaw in their decision-making or interviewing skills.
The real question is why Geneva does not tell its field office to follow the policy. It may be that a reluctant UNHCR official can effectvely deflect pressure from Geneva to comply with a policy by saying, “I wish I could, but the host government won’t let us.” Several years ago UNHCR’s office in Israel gave the same explanation for not allowing legal aid in RSD. This may be a pattern worthy of concern.
No doubt, Thailand is an incredibly difficult country in which to protect refugees. UNHCR’s office in Bangkok has been briefly closed by the government in the past. The government has flagrantly violated the principle of non-refoulement, does not allow UNHCR to access Burmese refugee camps on the border, and prohibits UNHCR from conducting RSD with Burmese, North Koreans, or Lao Hmong.
At the same time, it is not clear why UNHCR is willing to let a host government, no matter how hostile, to compromise the fairness of its RSD procedures. If a government told UNHCR not to apply its Guidelines on Gender-Based Persecution, would UNHCR go along? If a government told UNHCR not to use interpreters in RSD, would UNHCR go along?
Somewhere there should a line that UNHCR will not cross in compromising fairness. The same month that HRW published its report about Thailand, an American appeals court issued a judgment finding that any violation of the right to counsel in a deportation proceeding per se invalidates the deportation order. But obviously UNHCR does not draw the line at the right to counsel.
A decade later …
The violation of the right to counsel is just part of many worrying signs about RSD in Thailand. HRW reports on many of these. UNHCR-Bangkok has a poor record generally on communicating with refugees and asylum-seekers about their cases. And it does not explain its decision-making:
UNHCR’s Procedural Standards further instruct its offices that applicants whose claims are rejected should, wherever possible, be informed in writing of the reasons for the rejections, and specify that “notifications should permit rejected Applicants to make an informed decision about whether an appeal is appropriate and to focus appeal submissions on relevant facts and issues.” Yet, [Michael] Timmins [of Asylum Access], who represents such applicants, said, “There is no available record of the interview questions, rejected applicants receive limited reasons for rejection making it difficult to appeal, and UNHCR will often not disclose to a rejected claimant the evidence used to reject.”
This year is the 10 year anniversary of UNHCR’s Procedural Standards, the agency’s first comprehensive statement of policy about about how it conduces RSD. The recognition of the right to counsel was one of the most important advances in the new policy.
The Standards were issued first internally only, but were released to the public in September 2005. In an internal memo, the Department of International Protection warned field offices “that interested counterparts will start measuring the level of compliance of UNHCR with its own standards.”
That memo was sent in June 2005, and UNHCR-Bangkok is still not in compliance.
Thanks to reader Rickard Olseke, who sent a pointed response to my post arguing that UNHCR should not be criticized for taking a long time to decide RSD cases. He says:
Indeed, refugee status determination should not be rushed; fairness and reliability must never be compromised. But a waiting time of 315 days for a first instance decision? That is surely not a sign of a well functioning procedure. According to UNHCR’s own procedural standards, a decision should normally be issued “within one month following the RSD interview” or, in cases raising “complex issues”, within two months.
He is absolutely right about UNHCR’s Procedural Standards (see Rule 4.5). This is quite unfortunate, because we want UNHCR to actually implement its standards. In this case UNHCR has effectively given itself an unfunded mandate, one which I doubt many field offices have ever complied with consistently. That undermines the entire idea of having standards. And there is a real danger of UNHCR managers adopting a factory mentality, whereby the the effectiveness of refugee status determination is measured by the quantity of cases processed.
My suggestion is to amend Rule 4.5. Definitely do not expect a decision in a month. I would set a very modest outer limit, if any. And I would urge refugee rights advocates to not pressure UNHCR about going faster, except in particularly compelling circumstances. If we want to set a deadline – and there probably is good reason to set an outer limit – I would first think about establishing a rule firmly regulating the number of cases eligibility officers can be asked to process in a given period of time. Once that is established, the timeline can be set depending on the number of staff and number of applicants in a particular office.
To be clear, when something is a matter of right — the right to counsel, reasoned decisions, disclosure of evidence, etc. — then it doesn’t matter if field offices resist. Due process must be imposed. But timelines are something different, because there is nothing sacred in law about a 30 day or 60 day timeline. It is definitely better if the process moves faster. But not at the cost of fairness.
A group of activists led by the Fahamu Refugee Rights Program has been trying for months to rally internet opposition to UNHCR’s 2011 decision to support the cessation of refugee protection for around 100,000 Rwandan refugees who fled before, during and immediately after the 1994 genocide.
Technically, UNHCR is simply making a recommendation to governments – mostly the states in East and Central Africa where the majority of the Rwandan refugees have lived. The recommendation applies only to those who fled Rwanda through the end of 1998, and calls for exemptions for refugees still at risk of persecution or who have compelling reasons to not want to return because of previous persecution in Rwanda.
What this means in practice is that governments that have been anxious for years to expel the Rwandans will now be able to do so with UNHCR’s public blessing that, at least in most cases, forced deportations do not violate international law. Without cessation, only voluntary repatriation would have been permissible.
Refugee advocates often do not like cessation, for good reason. In this case, it means that a person who has lived in exile for 15 years or more and who has declined to participate in a voluntary repatriation program will now be forced to go back anyway.
The existence of this clause in the 1951 Refugee Convention and in the African Refugee Convention means that refugees are always in a state of legal limbo, unless and until a government chooses under its domestic law to grant them a more permanent status. But however cruel it may be in practice, it is part of international law.
Exceptions swallowed by the rule
Cessation requires fundamental, durable and effective changes in the situation that led people to become refugees. The basic criticism of the Rwandan cessation is that Paul Kagame’s government is autocratic and continues to persecute its political opposition. A video posted online on January 13 proclaims, “Rwandans still have reasons to flee.” For example, Rebecca Wilson wrote on OpenDemocracy.org:
There is little evidence to suggest that Rwanda is now a truly democratic country. On the contrary, President Kagame’s regime continues to oppress political opposition and to threaten the people of Rwanda both at home and abroad.
The Center for Strategic and International Studies summarized Rwandan politics this way:
President Paul Kagame, who has been credited with bringing an end to the genocide and restoring order, is an erudite and persuasive man, who has cultivated strong global allies, including within successive U.S. administrations. But the country’s apparent stability masks deep-rooted tensions, unresolved resentments, and an authoritarian government that is unwilling to countenance criticism or open political debate.
The problem is that it is not clear as a matter of law that a country must become democratic in order to meet the cessation criteria. The rampant conflict of the 1990s has ended, and most of the cases of persecution cited by critics are of high profile activists and defectors. UNHCR may be correct that the great majority of refugees from the 1990s can return without an objective risk of persecution.
Yet, the UNHCR recommendation is only narrowly justifiable with the exceptions for individuals still at risk, and for anyone who fled from 1999 onwards. But implementing these exceptions would require a process of refugee status determination guaranteeing due process to each individual applicant. What if the Democratic Republic of the Congo, Uganda, Malawi, or South Africa fails set up such a system? There have long been indications that Uganda is failing to do so, including ”gunpoint deportations” of Rwandans in 2011.
The legal answer should be that if a state fails to provide a fair system for applying for exemptions, it should not be able to apply cessation or deport anyone by force. UNHCR should have said that a government first must set up a fair system to adjudicate cases, and only then gain UNHCR endorsement for cessation.
Instead, UNHCR recommended an arbitrary deadline: ”status definitely to cease, latest by 30 June 2013.” That was actually a delay from a previous target, but is not conditioned on the hosting governments guaranteeing due process.
UNHCR had fair warning about what the rigid deadline might mean. In February 2011, the Rwandan Embassy in South Africa issued a press statement with a chilling first line: “No Rwandan living abroad will qualify for refugee status” after the UNHCR deadline. Somewhere between Geneva and Pretoria, the essential exceptions and limitations disappeared.
In sum, UNHCR issued a policy that is technically defensible as written because it has the proper exceptions on paper. But for many of the refugees, the exceptions may be little more than ink on paper.
Politics gets in the way
Although UNHCR’s cessation recommendation may be narrowly justifiable as a matter of law, it is not an open and shut case by any stretch. And there’s the rub, because UNHCR made this decision under a certain amount of pressure.
It is the job of the Office of the High Commissioner to work with governments that do not always have protection of human rights at the top of their agenda. In East and Central Africa, many of these governments had been pushing for Rwandan cessation for quite some time. Loudest among all of these was the Rwandan government itself.
UNHCR has to listen to these governments in order to maintain its ability to work on the ground in the region. But we do not know if these political pressures influenced the cessation decision, and it’s hardly unreasonable to worry that they did.
UNHCR could handle such decisions differently. Instead of simply issuing a recommendation, UNHCR could instead convene a panel of independent refugee law experts and submit the reasons why it believes cessation is warranted. The panel could then invite refugees and NGOs to submit arguments against, and then it could publish a decision.
Even if UNHCR was legally correct about cessation, a high stakes decision about the law should not be subject to such cynical doubt. But that is the situation for thousands of Rwandans who are now likely to have no choice but to go back.
In a September report about refugee protection in Thailand, Human Rights Watch levels an ill-considered attack on UNHCR’s refugee status determination procedures for being slow:
The most common complaint regarding UNHCR among urban refugees and asylum seekers in Bangkok is the long waiting periods for UNHCR Refugee Status Determination (RSD) interviews and for UNHCR to report back the results of the interviews, and a similarly slow appeals process. Asylum seekers consistently say that the process is delayed, that communication by and from the office is very poor, and that they remain extremely vulnerable while waiting for UNHCR to make and report decisions on their cases. In mid-2012, the average waiting time for the first-instance RSD interview with UNHCR was 112 days, and another 203 days to receive the decision for that interview. Average appeals took another 113 days for the interview (for those who were interviewed) and 236 days for a decision.
Let’s focus first on just the waiting time for RSD. If I were a refugee in Bangkok, I would find these waits agonizing. And it’s not just in Bangkok. Although the timelines will vary from office to office, one will hear similar complaints from asylum-seekers nearly everywhere UNHCR conducts RSD.
But there is a difference between empathizing with the legitimate frustrations of asylum-seekers and actually criticizing UNHCR over the waiting time.
Consider this: The average waiting time for a first instance decision at UNHCR-Bangkok is 315 days (112 days waiting for the interview + another 203 days for a decision). By comparison, at the US Asylum Office (which operates a non-adversarial adjudication system in some ways similar to UNHCR’s), the goal is to produce decisions in about 100 days.
So UNHCR is about a third as fast as the U.S. But it turns out that UNHCR has about a third as many RSD staff globally as the US Asylum Office (in terms of number of staff per applicant). In terms of pace, UNHCR is probably performing about as well as one should expect given its resources. If anyone wants them to go faster, they will need more staff.
But do we really want UNHCR to focus on speed in RSD anyway? Interviewing a scared asylum-seeker from a foreign country in a foreign language, collecting all available evidence about her situation, and then applying a complicated legal definition are not processes that are meant to be done in a rush. Speed is likely to come at the cost of fairness and reliability, which in RSD means a higher risk of someone in danger of persecution being denied protection.
Waiting for an RSD decision is going to be agonizing for asylum-seekers, just as waiting for any high stakes decision in life is agonizing. I always told my clients that it is better to get a positive decision late than a negative one early, and I think that remains good advice.
It’s clear in the Human Rights Watch report that the real problem in Thailand is that refugees have no protection while they wait for an RSD decision, and not much afterward either, since the Thai police do not respect UNHCR documents. That is a huge problem, but it cannot be fixed by rushing the RSD process.
A far more valid criticism in the HRW report is that UNHCR does not communicate very well with asylum-seekers during this process. Most urgently, HRW reports that UNHCR-Thailand often fails to intervene – and sometimes fails to even pick up the phone – when asylum-seekers facing security problems ask for help.
At a more mundane level, UNHCR does not have an accessible electronic case monitoring system by which anxious asylum-seekers can check on the status of their applications, or to make sure that documents have been received. This adds to refugees’ palpable feeling of simply being lost in an inaccessible bureaucracy, and takes a serious toll on their mental health. I worry that UNHCR staff may not always appreciate or understand the anxiety of the applicants waiting outside their offices.
But I would not want UNHCR to go any faster. In fact, take your time. Get it right.