Time Magazine touches on refugees’ ordeals in RSD
A Time cover story on the global refugee problem published this month hit repeatedly on the human impact of UNHCR’s refugee status determination operations. The article captured the joy of one family after learning that UNHCR had recognized their refugee status, the anxiety and insecurity caused by long backlogs and delays in registration, and the critical role the UN refugee agency plays as the last safety net of protection in counties where nearly none exists.
The Time article is about refugees stuck in limbo because governments are closing their doors, and does not discuss the technicalities of RSD. But it repeatedly dealt with UNHCR RSD because it focused on refugees trapped in places like Libya, Indonesia and Malaysia after failed attempts to reach Europe or Australia. It’s no coincidence that these transit countries are sites of large UNHCR RSD operations, and the stories of refugees there are reminders of the importance of UNHCR RSD operations in determining the course of refugee lives.
Forum on UNHCR RSD set for 30 June in Geneva
The upcoming UNHCR Annual Consultations with NGOs will include a forum on mandate status determination on 30 June at 1 p.m. in the International Conference Center Geneva (ICCG), Room 3.
The session, “UNHCR’s mandate status determination (RSD) procedures: Progress and current challenges,” was requested by Asylum Access, RSDWatch’s parent organization. Panelists include:
- Suzanne Duff, Senior Legal Officer, RSD Unit, Division of International Protection, UNHCR
- Rachel Levitan, Helsinki Citizens Assembly Turkey
- Michael Kagan, Asylum Access
Individual RSD grows in the global south
UNHCR’s most recent statistical reports show that South Africa and UNHCR are by far the largest refugee status decision-makers in the world.
Five Largest RSD Systems in the World (by new applications – 2009)
- South Africa: 222,324
- UNHCR: 114,100
- France: 42,118
- USA: 38,080
- Ecuador: 35,514
UNHCR’s office in Malaysia alone would have ranked fourth in the list, with 40,063 new applications, more than doubled from 2008. The Malaysia surge led the way in a global 62 percent increase in RSD applications to UNHCR last year.
The fact that only two of the top five RSD systems in the world were located in Europe or North American highlighted the emerging reality that individual refugees status determination is no longer characteristic only of asylum systems in the wealthiest states of Europe, North America and Australia. UNHCR’s RSD operations are spread across close to 60 countries in Africa, Asia and the Middle East. In previous eras, there was a common assumption that refugees in these regions would be recognized on a group basis, and often housed in refugee camps, rather than go through a individualized procedure.
The increasing prominence of urban refugees, coupled with restrictiveness of many host governments, has made individual status determination more prominent in the global south. In addition to South Africa and Ecuador, Ethiopia received 22,211 applications. RSD systems in Angola, Congo, Costa Rica, Mozambique, Sudan, Tajikistan, and Venezuela all received more than 1000 new applications in 2009.
Traditional asylum states in the West tend to be farther from the main refugee-producing conflicts, and have extensive visa requirements that make it more difficult for refugees to reach their shores. Those who do often come from a diverse range of backgrounds. By contrast, the asylum-seekers in major southern asylum states tend to be from nearby trouble spots. In Malaysia, 94 percent of the asylum-seekers at UNHCR were Burmese. In South Africa, two-thirds were from Zimbabwe. In Ecuador, 88 percent were from Colombia.
RSD applications to UNHCR offices in 2009
UNHCR reports that its offices received 5100 appeal and review requests in refugee status determination worldwide in 2009. The appeal case load was dwarfed by the 114,000 first instance applications received by UNHCR offices.
Critics have long argued that UNHCR needs to make its RSD appeal system more independent, though it is normally considered best practice to make high qualify first instance decision-making the priority. UNHCR has not objected in principle to improving its appeal system, but there is little consensus about how this should be done in the context of the UN system, where there is no independent judiciary.
The figure of 5100 cases may be helpful to develop more concrete ideas for a stronger RSD appeal mechanism within UNHCR, and indicates that the appeal mechanism need not be nearly as large as the first instance system.
UNHCR RSD applications up 62 percent in 2009
RSD applications to UNHCR offices
UNHCR published its annual global statistical report today (see here), and it shows that applications to UNHCR’s refugee status determination procedures increased dramatically in 2009, reversing three years of decline. UNHCR offices received 119,100 individual RSD applications, compared to 73,400 in 2008.
“The recent increase is primarily due to the higher number of applications registered with UNHCR offices in Malaysia and Somalia,” UNHCR said in the report.
Of the applications filed with UNHCR offices, 114,000 were new instance cases, while 5100 were appeals. UNHCR offices accounted for 13 percent of all RSD applications in the world, up from just over 8 percent the year before. RSD applications in industrialized states held steady.
South Africa remained the largest RSD decision-maker in the world last year, but this increase in applications to UNHCR is nevertheless a tremendous shift. The last time UNHCR offices received more than 100,000 RSD applications was in 1998, when more than 50,000 applications were filed in the Former Republic of Yugoslavia.
Over the next week, RSDWatch will be looking more closely at the new UNHCR data.
Related page: Where UNHCR-RSD happens.
Libya orders UNHCR to close
UNHCR announced today that the Libyan government has ordered it “to close its office in that country and halt activities.”
Libya was UNHCR’s fourth largest refugee status determination operation in the world in 2008, with close to 5000 applications. UNHCR-Libya employed 26 staff.
One of the most repressive states in the Middle East, Libya has been a transit point for African asylum-seekers trying to reach Europe by boat, especially those from the Horn of Africa. A sinking boat with more than 20 people, mostly Eritreans, was intercepted recently by the Libyan authorities.
The migration route for Eritreans and Sudanese refugees has been described as a river with two branches, with one route leading to Egypt and Israel, and the other to Libya and Italy. Last year Italy reached a migration control agreement with Libya and began deporting arrivals back to Libya.
A central critique of UNHCR’s RSD policy has been that UNHCR holds itself to a lower standard than it expects of government refugee status determination systems. Often this is the case. But a recent statement by UNHCR to a court in Luxembourg is a reminder that, on certain issues, UNHCR sometimes asks more of its own offices than it demands of others.
The case before the court concerned whether a full right of appeal should be available to asylum seekers rejected through expedited “manifestly unfounded” procedures. UNHCR said there must be a right of full appeal by “an authority, court or tribunal, separate from and independent of the authority which made the initial decision.”
Accelerated rejection of manifestly unfounded claims has been legitimized by the UNHCR Executive Committee (EXCOM) as a means to efficiently turn away clearly fraudulent refugee claims in order to reduce the incentive for migrants to abuse the asylum system. But the standards are vague and procedures vary widely from country to country. (In the U.S. the manifestly unfounded mechanism is called a “credible fear” interview.)
UNHCR’s statement, published on 21 May, acknowledges that governments can use accelerated procedures to reject some asylum claims, so long as certain standards are met:
In UNHCR’s view, national procedures for the determination of refugee status and subsidiary protection status may include special procedural devices for dealing in an expeditious manner with applications which are obviously without foundation as not to merit a full examination at every level of the procedure. Such applications have been termed either “clearly abusive” or “manifestly unfounded” and are to be defined as those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 Convention or to any other criteria justifying the granting of asylum. … However, Member States should not dispense with key procedural safeguards or the quality of the examination procedure to meet time limits or numerical targets.
But UNHCR policy does not allow its own offices to follow this path, prohibiting accelerated rejection of manifestly unfounded claims in mandate status determination. UNHCR’s Procedural Standards (section 4.6.4) say this:
Claims that appear to be manifestly unfounded … should be processed under normal RSD procedures, and should not be referred to Accelerated RSD Processing procedures. As access to Accelerated RSD Procedures involves giving staffing and scheduling priority to certain categories of Applicants over other registered Applicants, it should be reserved for Applicants who have compelling protection needs.
UNHCR thus rules out for its own offices a popular mechanism used by governments to make their RSD systems more efficient and less vulnerable to abuse.
Leading by example?
UNHCR argued to the Luxembourg court that there should be a distinction between prioritizing certain cases, and thus deciding them earlier, and abbreviating procedures by compromising on due process protections to make the process faster at the expense of fairness. Acceleration is okay, UNHCR said, but abbreviation is not.
In essence, UNHCR’s RSD policy calls for accelerated protection, identifying categories of vulnerable applicants who should have their RSD cases decided (quite likely favorably) sooner than others, while governments tend to expedite in order to reject cases quicker. The preference for early protection over early rejection is a credit to UNHCR, and it is not new (see this RSDWatch article from 2005).
While UNHCR told the Luxembourg court that accelerated procedures should be used to prioritize more deserving cases, it did not point out to the court that its own RSD policies are an example showing how this can be done. This was a missed opportunity, but there would have been a pitfall. While UNHCR has a policy exceeding minimum standards on accelerated procedures, it has not yet established an internal appeal system in mandate RSD that would meet the standards that it promoted to the court. This would have been a major problem, since the subject of the Luxemourg case was primarily about the right to appeal.
The Luxembourg case thus shows both an opportunity and a risk. UNHCR has the chance to bolster its arguments to governments by leading by example. But these opportunities are likely to be missed if UNHCR continues to insist on dual standards, one set for governments and another for itself.
UNHCR has issued updated eligibility guidelines for Colombian refugee claims, again recommending refugee protection for many types of Colombian asylum-seekers, and complimentary protection for many others due to continued generalized violence in Colombia. However, UNHCR also cautioned that some Colombian asylum-seekers may have been involved in violence themselves, and thus could be subject to exclusion from Convention refugee protection.
UNHCR highlighted particular risks to:
- Members and supporters of parties to the conflict.
- Local and regional government officials.
- Civil society and human rights activists.
- Journalists and media professionals.
- Trade union leaders.
- Indigenous peoples and Afro-Colombians
- Certain categories of women and children, especially those from areas most affected by conflict.
- Other particularly vulnerable social groups.
Some quick insights on the obligation to disclose evidence from a Canadian textbook on administrative law.
From Jones & de Villars, Principles of Administrative Law, 2nd Edition (1994):Generally fairness requires that all information relied upon by the tribunal when making its decision be disclosed to the individual. Failure to do so deprives the tribunal of jurisdiction and renders the decision void. The information to be disclosed includes reports prepared by the tribunal’s staff or any other report which the tribunal has relied on in making its decision. (pp. 267-268)
Without knowing what might be said against them, people cannot properly present their case. (p. 251)
However, in certain exceptional circumstances, the state may withhold sources of information if disclosure would undermine a legitimate state purpose (p. 251).
These seem to be the same basic principles that UNHCR has advocated to governments, and that NGOs have called on UNHCR to apply in its own RSD systems.
UNHCR’s latest guidelines call for a broad application of refugee protection to Somali asylum-seekers, listing multiple groups likely to have valid refugee claims in southern and central Somalia in particular, including nearly all but the most powerful members of society:
- Individuals perceived as supporting the TFG, AMISOM or the ENDF
- Individuals perceived as contravening Islamic laws or decrees
- Civil society actors (human rights defenders and humanitarian workers) and journalists
- Members of minority clans
- Members of minority religious groups
- Individuals belonging to a clan engaged in a blood feud
- Individuals forcibly recruited to militias
- Women and Girls
- Children
- Lesbian, gay, bisexual and transgender (LGBT) individuals
- Victims of trafficking
UNHCR is subject to criticism by refugee rights advocates for its refugee status determination procedures. But UNHCR’s substantive interpretations of refugee law are generally more inclusive than the approaches of many governments, especially on issues related to non-state persecution and gender. UNHCR guidelines are non-binding on states, but should be in force in all UNHCR offices.
Among other issues, UNHCR concluded that Somalis could face a genuine fear of persecution if Islamist militias believe they have violated extreme interpretations of Islamic law. In Somalia, the al-Shabaab militia has at various points banned music, playing soccer and other games, school bells, cinemas, and dancing, as well as mandating the veiling of women and observance of prayer times.
According to UNHCR, some “married women whose husbands or fathers were unable to pay for the hijab were forcibly divorced and re-married to members of al-Shabaab.” UNHCR noted that private violence against women is widespread in Somalia, including “early and forced marriage, domestic violence and female genital mutilation.”
UNHCR considers that many Somali women … from southern and central Somalia are at risk on account of their membership of a particular social group.
UNHCR advised against returning asylum-seekers to Puntland or Somaliland unless they actually originate from those regions. On May 21 UNHCR’s spokesman called for governments to refrain from deportations to Somalia generally.
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