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.
All eyes on Egypt
As the world watches the political upheaval in Egypt, it is worth remembering for a moment the tens of thousands of refugees who find tenuous refuge there.
The protests are about the relationship between the Egyptian people and their government. But Egypt also is a major first refuge for people fleeing persecution and war, from the Horn of Africa especially. Cairo is often cited as hosting one of the worlds largest populations of urban refugees.
For readers of RSDWatch, Egypt holds special importance because it has long been one of the largest sites of UNHCR mandate status determination, and has been a major incubator of refugee legal aid programs for the global south. Many refugee rights organizations – including Asylum Access (RSDWatch’s parent organization) – have been inspired by Cairo’s Africa Middle East Refugee Assistance (AMERA), and many have been led by AMERA veterans. The manager and founder of RSDWatch, Michael Kagan, is a former AMERA director and teacher at the American University in Cairo.
Some refugees in Egypt are able to register with UNHCR, and obtain residence permits. But they are rarely permitted to work, depend extensively on the humanitarian aid for education and healthcare, and have often complained of police harassment and a high level of popular racism against Africans. In recent years, Egypt has also conducted mass deportations of asylum-seekers, especially to Eritrea. Asylum-seekers are often subject to indefinite detention and denied access to UNHCR. And many migrants have been shot by Egyptian forces while trying to cross the Sinai to Israel.
We have heard a few reports from refugees in Cairo. They were nervous, staying at home, and very worried about the violence and looting. These are just a few examples of the many things at stake as events in Egypt unfold.
US Court rebukes evidence withholding as “Kafkaesque”
An appeals court in the United States has rebuked the Department of Homeland Security for failing to disclose the contents of an immigrant’s case file, in a decision that could also apply to some aspects of UNHCR’s restrictive evidence policies in refugee status determination.
The case, Dent v. Holder, concerned the government’s attempt deport a man who claimed to be an American citizen. He had difficulty obtaining on his own all of the necessary documents to prove his citizenship, but it turned out that the government had the missing evidence in his “A-file” and failed to disclose it until late in the appeals process.
The government had maintained that an immigrant could access government documents about his case only through a Freedom of Information Act request, which would take too long to process to be useful in many deportation cases. The court said this would violate due process rights, and would reflect “a Kafkaesque sense of humor about aliens’ rights.”
The court said: “We conclude that Dent, having asked for help in getting what records the agency had that bore on his case, should have been given access to his file. The only practical way to give an alien access is to furnish him with a copy.” Even if Dent had not asked for records, the court said, “We are unable to imagine a good reason for not producing the A-file routinely without a request.”
Although not a refugee case, the decision has implications for the legitimacy of UNHCR’s evidence policies. In RSD, UNHCR policy allows applicants to gain access to documents that they originally submitted, but the applicant has to know enough to ask for them. But UNHCR restricts disclosure of full case files to refugee applicants.
Disclosure of interview transcripts – typically the single most important piece of evidence in refugee cases – is expressly prohibited by UNHCR policy in its own offices, even though UNHCR has called for such disclosure by governments. There is no equivalent to the Freedom of Information Act in the UN system, and no UN court system that can rule on due process rights in the way the American Court of Appeals dealt with Dent’s situation.
In US, legal aid access and access to asylum rising together
An analysis of recent data indicates that recognition rates of asylum-seekers applying for protection in the United States have risen substantially over recent years, along with the availability of legal aid.
The report by Syracuse University found that in the first nine months of 2010 only 50 percent of asylum applications in the US were rejected, an all-time low. In 1986, 89 percent were rejected.
The report concluded, “The growing success of asylum seekers is partly attributable to increases in the proportion who obtain legal representation.” In 1986, only about half of asylum-seekers were represented by a lawyer. But today the figure is above 90 percent.
Correlation does not prove causation, but this finding is consistent with other studies that have found that asylum-seekers who have access to even basic legal aid succeed in finding protection at much higher rates than those who do not. This has been found to be true of UNHCR RSD, as well as government-run systems like the US.
Other improvements are also likely to improve recognition rates. Since the mid-1980s there have been substantial developments in legal standards, procedures and training in asylum cases. In UNHCR, where only a minority of applicants have legal aid, recognition rates have risen significantly since the advent of stronger due process standards. This suggest that across the board improvements in RSD procedures, including but not limited to legal aid, are essential.
While the overall trends were positive, the Syracuse report also found continuing concern about wide inconsistencies in adjudication of asylum cases by different courts and judges in the US. This kind of inconsistency may also be a concern in UNHCR RSD. Available data indicate that there are gaps in how different UNHCR offices handle superficially similar groups of applicants, but it is difficult to pin down the reason or extent of the inconsistency because the UN publishes mush less statistical data about its RSD adjudications than the US Government.
