Revisiting Closed File Limbo: UNHCR needs to separate re-considerations from new claims
A number of years ago, Forced Migration Review ran an article that ruffled a few UNHCR feathers in Egypt, called “In Closed File Limbo.” The thrust of article was that UNHCR bore some responsibility for the throngs of failed Sudanese asylum-seekers in Cairo slums who remained in exile in Egypt long after UNHCR had given them a final rejection of their refugee claims. Vincent Cochetel, the UNHCR representative in Egypt at the time, was quoted: “Why don’t they move on?”
There are three reasons. The most obvious – and the one Cochetel was thinking of – is that the asylum-seekers didn’t understand or couldn’t accept that they did not meet the criteria for refugee status. When I worked with Sudanese refugees in Egypt, it was common for people to tell me that, yes, they had a status at UNHCR, and that status was “closed file.” Some of these people were not refugees so much as victims of a cruel and discriminatory system of global migration control. UNHCR has unwittingly become the face of that system for some migrants.
But there are two other reasons why “closed file” cases may still be UNHCR’s concern. The first – the one UNHCR staff are typically most reluctant to acknowledge – is that UNHCR makes mistakes that can have drastic human consequences. Around the time of the FMR article, UNHCR in Cairo was rejecting around three quarters of Sudanese applicants, during the heart of the war in South Sudan, at the height of the ghost house system in Sudan, and without giving reasons for decision or an independent appeal. I am glad to say that errant rejections are, generally speaking, less numerous than they once were. But given the human stakes, a single error in RSD is unacceptable. And given the fact that UNHCR offices are overstretched and still abridge a number of procedural safeguards, such errors are still a predictable outcome.
There is another kind of closed file that UNHCR must be concerned about. In this type, the refugee claim was correctly rejected at the time, but subsequent events created a new and valid basis for refugee status. This is known as a sur place refugee claim.
UNHCR’s procedural standards acknowledge these latter two types of cases but regrettably group them together by allowing for petitions to re-open closed cases. In rule 9.2, UNHCR permits a closed file to be re-opened if reliable new evidence shows that the person now has a valid claim, or if there are “serious reasons” to conclude the case was decided in error.
This is a good policy in substance. But in practice it is likely to run into a problem. In overstretched offices, UNHCR staff struggle to process first appeals, leaving many pending for more than a year. It would be fair to wonder how such an office should also handle re-opening requests. But if they don’t review them promptly then people at genuine risk will be left unprotected for years indefinitely.
Other than the obvious need to get things right the first time, UNHCR probably needs to separate the filing of genuinely new claims from cases where people with closed files want to prove that their initial rejection was a clear error. But this cannot be done until UNHCR creates a tertiary appeal system that could review a limited number of cases from all UNHCR field offices. If such a system existed, local offices would be able to limit their review of petitions to re-open to those that clearly assert a new case based on new evidence or new events.
But UNHCR is not likely to do this anytime soon. And so if you are a genuine refugee who has a closed file, be prepared to wait a very, very long time.