The uncounted
The largest UNHCR refugee status determination operation in the world is in Malaysia, where more than 25,000 people applied for recognition of refugee status in 2010. But that may actually be a substantial undercount of the real number of asylum-seekers in Malaysia who might like to apply.
A footnote in a statistical annex of UNHCR’s 2010 Global Trends cautions:
According to UNHCR, and based on lists provided by refugee communities in Malaysia, there are 10,000 unregistered asylum-seekers in Malaysia which share the same profile as the current population of asylum-seekers and refugees and who are being progressively registered and having their refugee status determined.
This is hardly the only population of would-be asylum-seekers who never apply for RSD, though the reasons vary from country to country.
For example, UNHCR reports that just 438 people applied for RSD in the United Arab Emirates and just 37 applied in Qatar in 2010. But these countries host millions of migrants, many from countries in Asia and Africa that produce large refugee flows. If just a small faction of the Somalis, Afghans, Sudanese and Pakistanis who live in the Arab Gulf were to ask for refugee protection, the UNHCR RSD figures would balloon.
Refugee status determination is declaratory. It recognizes that someone is a refugee, but it doesn’t make them a refugee. A migrant who cannot go home because of a fear of persecution but who for some reason does not seek or obtain refugee recognition is still a refugee in principle, albeit an invisible one.
The key issue is why people do not apply. The most serious problem is if asylum-seekers are unprotected and still prevented or deterred from applying for protection. But in some cases, uncounted refugees may in fact be very well protected. For example, in many countries some refugees can achieve legal permanent residence and eventual citizenship through family-based or employment-based immigration, and thus may never apply for asylum.
A more complicated problem develops if uncounted refugees are temporarily secure, for instance through temporary sponsorship through an employer, especially in a country that may be hostile to recognizing refugee status. But they may find themselves in a precarious situation if their employment ends and they lose their visas.
Applications to UNHCR RSD down in 2010, recognition rate stays high
Refugee status applications to UNHCR offices worldwide declined to 96,800 in 2010, after topping 114,000 in 2009. The decline roughly followed a global trend, with applications to government-run RSD systems also dropping in 2010.
UNHCR accounted for around 11 percent of all RSD applications worldwide, down from 13 percent in 2009. But UNHCR continues to be one of the two largest RSD decision-makers.
The largest RSD decision-maker continues to be the government of South Africa, which received 180,637 asylum applicants. The United States had the next largest government RSD system with an estimated 54,300 applicants, far less than UNHCR.
The recognition rate in UNHCR RSD remained high at around 83 percent, compared to less than 35 percent for government-run RSD. UNHCR’s global recognition rate has remained consistently over 75 percent each year since 2005. Every UNHCR office that decided 1000 or more cases in 2010 posted a recognition rate of at least 57 percent.
UNHCR offices reached decision in only 57,832 new applications, and faced a global RSD backlog of more than 116,000 cases at year’s end.
(The data reported here are from UNHCR’s 2010 Global Trends, and its statistical annexes.)
Australia High Court blocks Malaysia return plan, re-affirms government responsibility for refugee rights
The High Court of Australia has blocked a plan to send asylum-seekers from Australia to Malaysia and issued a re-affirmation that governments, not UNHCR, must take primary responsibility for protecting all refugee rights.
In a 6-1 ruling issued 1 September, the court halted the scheme by which Australia would have sent asylum-seekers to Malaysia to have their applications processed, while Malaysia would send recognized refugees to be resettled in Australia. Australian officials had hoped the swap would deter asylum-seekers from arriving at their shores.
The court found that Australia cannot send asylum-seekers to any country that does not accord refugees their full rights under the 1951 Refugee Convention. Malaysia is not a party to the Convention and has been accused of detaining refugees in poor conditions and of deporting refugees as recently as 2009. The Malaysian government does not recognize refugee status, and under its laws illegal immigrants are liable to fines, prison and caning.
Malaysia does generally allow asylum-seekers to access UNHCR, which conducts refugee status determination. But the Australia High Court said:
A country does not provide access to effective procedures if, having no obligation to provide the procedures, all that is seen is that it has permitted a body such as UNHCR to undertake that body’s own procedures for assessing the needs for protection of persons seeking asylum.
Before the court decision, rights advocates and some critics in the media had noted weaknesses in UNHCR’s RSD procedures among the problems with the proposed refugee swap with Malaysia. The court avoided these issues.
But the judgment makes clear that mere access to UNHCR does not constitute sufficient refugee protection under international law. Equally important, the court held that all of the rights in the Refugee Convention are important, including the right to work, education, and freedom of movement.
UNHCR’s office in Cairo now gives asylum-seekers rejected in refugees status determination an explanation in writing, answering a decade-old call from human rights organizations.
Providing written individualized reasons for rejection has been a longstanding demand from advocates seeking due process reforms in UNHCR RSD. Since 2003, UNHCR’s official policy has been to encourage field offices to do so, but UNHCR headquarters as so far not made it mandatory. But the practice has been spreading among many of the largest UNHCR RSD operations.
Reasons for rejection in Egypt is a particular milestone because it was one of the first locations where NGOs made a formal request for the reform. UNHCR-Cairo had been an early innovator in allowing legal aid in RSD in the late 1990s. In some cases UNHCR officials gave reasons for decision by email to legal aid organizations representing asylum-seekers. In 2001, legal aid providers and Egyptian human rights organizations wrote a letter to UNHCR’s representative in Egypt asking for reasons for rejection in writing in all rejected applications. But UNHCR said no.
In the intervening years, UNHCR-Cairo experimented with posting generic coded rejections, such as “LOC” for “lack of credibility” and “NWP” for “no well-founded fear of persecution.” More recently the office gave rejected applicants an oral summary of the RSD decision. But until this year UNHCR-Cairo had declined to join the growing list of offices that were giving individualized reasons for decision in writing.
The Asia Pacific Refugee Rights Network issued a statement criticizing the recent agreement that would send 800 asylum-seekers from Australia to Malaysia. APRRN argued that because Malaysia has poor record of protecting refugee rights, the transfer would violate Australia’s obligations to protect refugees.
APRRN also argued that UNHCR’s refugee status determination procedures in Malaysia have been problematic:
Australia may also only transfer refugees to states where there are fair, effective and efficient procedures for the recognition of their status as refugees and appropriate reception conditions. Malaysia has no domestic process in place for the recognition of status. UNHCR’s process for recognizing status in Malaysia relies upon procedures which do not meet the minimum standards it sets for states. More specifically, UNHCR’s status determination procedures lack procedural fairness; do not adequately allow for representation by counsel; fail to provide for and often prohibit the disclosure of information or documents upon which the decision is made; do not require written reasons for decision; and, do not provide for an independent appeal mechanism. We are concerned that UNHCR’s status determination procedures may lead to the improper rejection of refugees.
UNHCR-Malaysia is by far UNHCR’s largest RSD operation in the world and posts a generally high overall recognition rate, especially for Burmese asylum-seekers. However, it is not clear if UNHCR-Malaysia’s recognition rate is similarly high for other nationalities.
Australia and Malaysia reached a tentative agreement that will send 800 asylum-seekers from Australia – where they would have gone through refugee status determination by the Australian government – to Malaysia where RSD will be conducted by UNHCR.
UNHCR’s office in Malaysia has had by far the largest RSD caseload of any UNHCR operation for several years, with more than 40,000 applications in 2009.
In exchange, Australia would accept for resettlement 4000 recognized refugees currently in Malaysia. The difference in numbers – 800 asylum-seekers v. 4000 refugees – was criticized by Australian opposition politicians. But it appears consistent with longstanding Australian preference for resettlement from third countries over the arrival of uninvited asylum-seekers who arrive by boat.
Press reports indicated that Malaysia had committed to not deport any of the asylum-seekers who are ultimately recognized as refugees by UNHCR. But it is not clear what other rights they would have in Malaysia, which is not a party to the 1951 Refugee Convention.
On May 17, Australia’s Immigration Minister signalled to the press that Australia might seek similar agreements with other countries in the region, including Thailand, where UNHCR conducts RSD but refugees are often subject to prolonged detention.
A Lebanese court on 6 May dismissed seven-year-old political charges against refugee rights activist Samira Trad, finally closing a dark chapter in UNHCR’s relations with refugee legal aid organizations.
Trad is the founder and director of Frontiers Association, which has been a leading advocate of legal aid and due process in UNHCR refugee status determination. In recent years, UNHCR’s office in Beirut has been a leader in RSD reform, and has built a close relationship with Frontiers. But the charges against Trad stemmed from a very different period, when suspicions swirled that UNHCR staff were seeking retribution against a critic.
Beginning in 1999, Trad helped organize international criticism of Lebanon for arrests and deportations of refugees, and by 2002 Lebanese security forces were repeatedly interrogating her and restricting her ability to travel abroad. But Trad also had a rocky relationship with UNHCR’s Regional Office in Beirut, which she criticized for its handling of detention and deportation cases. At the time, UNHCR-Beirut also resisted Trad’s efforts to develop legal aid in refugee status determination.
Lebanese authorities arrested Trad in September 2003 and later charged her with libel against government officials, a common charge used against human rights activists in Arab states. Documents obtained by her lawyers showed that Lebanese authorities acted after receiving complaints and information about her from UNHCR staff, apparently sparking her arrest.
UNHCR’s Inspector General’s Office conducted an investigation of UNHCR’s role in the incident, but the inquiry was inconclusive. Yet relations between Frontiers and UNHCR improved considerably afterward, and UNHCR began welcoming Frontiers’ legal aid in RSD.
In 2007 UNHCR-Beirut began sharing RSD case files with Frontiers’ legal advisors in a pilot project that has been held up as a model for other UNHCR offices. The Beirut pilot marked the first time that a UNHCR office officially shared transcripts and case assessments with asylum-seekers’ legal representatives, creating a first crack in UNHCR’s longstanding policy against such disclosure to applicants.
Vagueness and credibility in UNHCR rejection letters
One of the most important reforms UNHCR has undertaken in its refugee status determination procedures is the expansion of providing reasons for rejection to asylum-seekers. Yet ensuring that the rejection letters are clear and adequately informative is likely to be a continuing struggle.
RSDWatch has seen a number of rejection letters issued by UNHCR offices in recent years. We have not seen enough of the new UNHCR rejection letters to constitute a representative survey, but we can describe some recurring issues. Some letters that we have seen are relatively specific and individualized, while others are quite general or contain circular reasoning. We must obscure key details about the letters that we have seen for the sake of anonymity.
What UNHCR offices have begun to provide to rejected asylum-seekers is not the ‘real’ decision, but rather a summary prepared after the decision to reject an application has been made. UNHCR offices prepare longer internal assessments of RSD claims but do not usually provide these to rejected applicants. We do not know how much useful information might end up withheld through this process.
Doubts about credibility feature prominently in many UNHCR RSD rejections, as is common in many RSD system. But in letters we reviewed UNHCR was not always clear about the reason for deciding not to believe an applicant. RSDWatch has seen letters from UNHCR offices stating without explanation that key elements of a refugee claim are “not credible,” without saying why. This is essentially circular reasoning, declaring an application to be invalid because it lacks validity.
Some letters do provide clearer explanations, but typically still leave questions about the decision. In the most specific UNHCR rejection letters that we have seen, UNHCR offices make reference to specific subject matters about which an applicant was allegedly vague or contradictory. But in the letters we have seen UNHCR did not actually illustrate or show the vagueness or contradictions by quoting from the RSD interview transcript, so it is difficult to know if UNHCR’s conclusion was reasonable.
In one case, UNHCR asserted that the applicant had contradicted him/herself about a key fact. In this case, and against normal UNHCR policy, legal advisors were able to obtain a copy of the interview transcript and could not find an actual contradiction.
In another case, UNHCR said that it could find no independent confirmation that an act of violence occurred at the time and place the asylum-seeker claimed. The rejection letter asserted that the applicant had failed to describe the event in detail. It also said the applicant had not given very much detail about an arrest and detention. But the rejection letter did not provide quotations from the interview transcript setting out exactly what the applicant was asked about these subjects, nor how s/he replied.
Some rejections appeared to be based on assumptions made by decision-makers. In one letter, UNHCR asserted that it is implausible that security forces would be interested in the applicant after releasing him/her from prison. The letter gave no evidence showing how UNHCR can be sure of this.
In another case, UNHCR said that it rejected the applicant because his/her claims to have come from a particular place of origin were not credible. The only explanation given was that the applicant did not know the geography of the area and did not know certain information about his/her ethnicity. UNHCR did not specify the information that the applicant should have known, nor how UNHCR could be sure that a credible applicant would know the information.
The examples that RSDWatch has been able to review indicate several pitfalls in UNHCR’s current procedures.
- First, when an applicant receives a rejection letter that is too general, it is impossible to know whether the reasoning of the decision was inadequate, or whether it is merely an inadequate summary. In some of these cases, there may be a more cogent explanation for the decision that is kept in UNHCR’s files and unavailable to the person concerned. It may be necessary for UNHCR to allow applicant to object to vagueness in rejection letters, and to obtain more specific information before deciding whether to appeal the decision.
- Second, in credibility-based rejections even the best and most specific of the letters that we have seen would fail to give an applicant a clear understanding of the decision because they do not actually show that the applicant’s testimony was flawed. The letters might be specific enough if UNHCR also disclosed the interview transcript or at least quoted from it at length. Unfortunately, UNHCR policy prohibits disclosure of interview transcripts to applicants. This leaves asylum-seekers in a quandary. If the applicant believes that s/he has given a direct answer to the questions that were asked, and UNHCR says, “you gave insufficient detail,” it is not clear what the applicant could say to effectively appeal. It is also not clear how an outsider reading the letters can have confidence that UNHCR’s decision is reliable.
- Third, we have seen multiple letters where UNHCR asserts that publicly available country of origin information (COI) fails to support a refugee claim. But we have not seen UNHCR give citations or quotations from the COI on which it relies. This again leaves an applicant who wants to appeal facing a challenge. S/he can submit COI that supports his or her claim, but has no idea if UNHCR has already seen the same document and decided to interpret it differently, or if UNHCR relied on a different source for some unknown reason.
Providing reasoned rejection letters is still optional for UNHCR field offices, a gap between what UNHCR asks of governments and the standards it sets for itself.
Wikileaks cable: Egypt worried that S. Sudan independence will increase refugee flows
A leaked February 2010 US diplomatic memo shows that Egyptian officials worried that the break up of Sudan would increase refugee flows to Egypt.
Any large increase in Sudanese refugees arriving to Egypt would have significant implications for UNHCR’s refugee status determination work. Egypt has long been the site of one of the largest UNHCR RSD operations in the world, dealing mainly with asylum-seekers arriving from the Horn of Africa. A decade ago, a surge in south Sudanese applications in Egypt led to heavy RSD backlogs.
In 2004 UNHCR-Cairo suspended individual RSD for Sudanese in the wake of the South Sudanese peace agreement and began reducing its use of resettlement to the United States, Canada and Australia. This led the next year to months of protests by refugees outside UNHCR’s office, then at Mustafa Mahmoud Square in Cairo. These protests were broken up by Egyptian police in December 2005 and the deaths of 27 refugees, about half of them children.
Last month, Southern Sudanese voted overwhelmingly to secede. Sudanese President Omar Bashir has accepted the results. On February 7, U.S. President Barack Obama announced that the United States would recognize the new state of South Sudan as a sovereign independent country when secession becomes effective in July.
One year earlier, in a cable obtained by Wikileaks and published by The New York Times, US Ambassador Margaret Scobey told Chairman of the Joint Chiefs Admiral Mike Mullen: “The GOE would like to maintain Sudanese unity because it believes a break-up will increase refugee flows into Egypt and threaten Egypt’s access to Nile waters.”
It is not clear why Egypt worried that the independence of South Sudan would increase refugee arrivals, since independence is meant to resolve a civil war that fed one of the largest refugee influxes into Egypt in recent decades. A successful peace process would normally be expected to facilitate the repatriation of many south Sudanese in Egypt.
Is a 30-day appeal deadline fair?
A common complaint of asylum-seekers and legal aid providers is that it’s difficult to prepare an effective appeal of a refugee rejection within the 30 days allowed by UNHCR policy. But the problem may be less a question of when appeals should be filed than a question about what should be filed so quickly.
According to Section 7-2 of UNHCR’s Procedural Standards, UNHCR offices should establish time limits for filing appeals, which should be at least 30 days from the notification of first instance rejection. The standards also call for flexibility about the deadline “in appropriate cases,” and provide for a grace period of six weeks after the appeal deadline before a file is closed.
On the surface, UNHCR’s rule is not especially strict. Appeal deadlines of 30 days are common in refugee status determination systems and in a wide range of judicial systems. In some systems, even less time is provided. But not all deadlines are created equal.
Submitting an entire appeal in just 30 days is a challenge if an applicant wants to prepare a thoughtful, focused and well-researched case, and it is especially an impediment to providing legal aid. A legal advisor who has never met an asylum-seeker before might need to conduct two, three or more interviews with the client, then conduct hours of research and writing, all of which might need to be reviewed by a supervisor. Asylum-seekers may not find a legal aid office until weeks after being rejected.
To solve this problem, many judicial systems let claimants submit an initial appeal that is quite short to meet the deadline – typically a simple notice of appeal, or a summary of appeal grounds. More developed arguments and documentation are submitted later.
UNHCR’s Procedural Standards are silent about what exactly must be filed within 30 days, and call for general flexibility about the format for RSD appeals. But the practice at many UNHCR offices is to insist that an entire appeal submission be filed within 30 days.
Instead, UNHCR offices may need establish two appeal deadlines rather than one, an initial appeal deadline (i.e. 30 days) and a time frame for supplemental information. This need not slow down the decision-making process, so long as the final submission deadline is sooner than UNHCR would normally be able to decide the appeal anyway.
UNHCR also needs to ensure that it has a clerical system that will ensure that all submissions about a case are added to the correct case file so that all of the materials is present when the case is actually decided. Applicants and legal advisors often worry about submissions being lost in an overstretched RSD system, although it is not clear how often this happens.
