Why is UNHCR Doing RSD Anyway? A UNHCR Report Identifies the Hard Questions

Back in 2001 and 2002, when I was working on setting up legal aid for asylum-seekers applying to UNHCR for refugee status determination (RSD) in Egypt, UNHCR officials would sometimes tell me: “Why don’t you put your energy into getting the Egyptian government to live up to its responsibilities? UNHCR is not even supposed to be doing RSD.”

By this time, UNHCR had been doing RSD in Egypt for nearly five decades, and so many people in Cairo took it for granted that this was UNHCR normal role. But it was a provocative question. So, whenever I met up with an Egyptian lawyer or human rights activist, I would ask their opinion: “Do you think we should push the Egyptian government to take over from UNHCR and start deciding refugee cases?” I would always get the same answer: “Are you crazy? Why would anyone want to have the Egyptian Government involved in anything when you don’t have to? You are lucky you have UNHCR.”

These conversations kept running through my head as I read the UNHCR Policy Development and Evaluation Services (PDES) report Providing for Protection: Assisting States with the assumption of Responsibility for Refugee Status Determination, which was published earlier this year. The report is the most thorough assessment yet of what it takes to develop a government-run RSD system in countries that have not had one, and thus what it takes for UNHCR to be able to shift responsibility for RSD back to host governments.

The report raises many questions that deserve further research. As is sometimes a problem in PDES reports, the sources are UNHCR-centric. The raw material comes primarily from a survey of and interviews with UNHCR’s own staff. For the most part, we don’t get the perspectives of host governments, of local civil society, nor of refugees. It would be great to see follow up work that would capture these voices.

But even given these limitations, the PDES report manages to ask the hard questions. It offers sensible, practical suggestions about dealing with the challenges involved in transferring RSD to a host government (a process that requires a political foundation and considerable time and care). It highlights the fact that reflexively shifting RSD to a government is not always the right thing to do for refugees. It transparently acknowledges that UNHCR can have mixed motives for wanting to make this transfer. In short, this is a seminal work on a subject that has long been wanting for attention.

I cannot summarize the report’s findings exhaustively. But having spent much of my professional life focused on the challenges involved in UNHCR RSD, I will try to offer some commentary on some of the most important issues and questions that the report raises.

Good reasons for governments to do RSD

UNHCR’s longstanding position on RSD is that it is a state responsibility. One of the most interesting things about the PDES report is it suggests that extensive focus on state responsibility has had important downsides, as I elaborated on in a post on UNHCR’s Global Views blog. The PDES report shows that there are a few countries where it might be possible to transition from UNHCR to government RSD, but that doing so successfully is quite difficult. UNHCR needs to embrace the fact that refugee status determination has been and probably always will be one of its central protection functions.

Nevertheless, it is useful to articulate clearly why it is usually better for a government to do RSD, because only then can we understand why sometimes UNHCR needs to step in.

As the PDES report observes, the best reason for UNHCR to try to get governments to do RSD is that it can lead to refugees having better access to their rights. There are two main reasons why this is likely to be the case. First, governments are more likely to respect decisions made by their own agencies, and thus may be more likely to extend rights and benefits to refugees recognized in a government RSD system. Second, a government-run RSD system might benefit from the infrastructure already in place in a country’s legal system, including both the judiciary and legal aid providers.

These are usually good reasons for UNHCR to leave RSD to the government. But the PDES report astutely observes that these rationales are built on several assumptions that will not always be true. Some governments are not willing to extend many rights to refugees regardless of who does the RSD. Other governments may set up RSD systems that are deliberately biased against refugees, because their real purpose is to deny protection. Many countries that have not set up their own RSD have weak rule of law or problems with judicial independence. This is why my Egyptian interlocutors thought it so absurd that anyone would actually want to the Egyptian government to play a greater role in deciding refugees’ fates. This is also why the PDES report emphasizes the reality that transitioning to government RSD is usually a long term and politically delicate process that will succeed only when the political stars are aligned correctly.

Reasons why UNHCR may not want to do RSD

The most important contribution that the PDES report may make to the conversation about UNHCR RSD is that it highlights the reality that UNHCR may have multiple motives for not wanting to do RSD, and that some of these motives are more valid than others.

A particularly petty reason noted in the report is that doing RSD “makes UNHCR increasingly vulnerable to external critique.” The report says that some UNHCR staff voiced this sentiment to explain their ambivalence about RSD work. We should hope that it carries little weight. Anytime UNHCR does anything of importance for refugees, it might be criticized. If the criticisms are valid, then UNHCR’s best response would be to fix whatever problems exist. If the criticisms are invalid, then UNHCR can say so. But one thing UNHCR should not do is avoid taking on important roles simply because it does not want to bear the consequent scrutiny.

A far more important and compelling reason for UNHCR’s reluctance relates to the resource burden imposed by RSD. In 2013, UNHCR received close to 200,000 new applications for individual RSD, up from just 98,800 in 2011. This is an immense strain on UNHCR offices, some of which were struggling to cope with their RSD caseloads even before the recent surge in applications. Data in UNHCR’s 2013 Global Trends statistical report suggests that UNHCR was able to reach a decision for only 35 asylum-seekers for every 100 who submitted RSD applications. It is clear that UNHCR is overwhelmed.

The complexity of strained resources

Earlier this year, Director of International Protection Volker Turk made the following statement to the UNHCR Executive Committee:

One thing is clear: without more robust State engagement, resources, and alternatives to individual processing, dealing with such a high number of individual RSD applications registered by UNHCR is not sustainable. We have made significant progress in strengthening the capacity and efficiency of our mandate RSD procedures in recent years. But it is crucial that Governments assume greater responsibility for RSD.

Turk thus linked the resource burden to the goal of shifting RSD back to governments. But the wisdom of such an approach depends on an assumption that may be quite questionable. While the strain on UNHCR offices is clear, it is less clear that governments in the relevant countries would themselves be willing or able to marshal greater resources. It is also not clear that demanding that they do so would benefit refugees. Rather, the resource-burden rationale seems focused mainly on serving UNHCR’s own institutional interests.

It is thus striking and refreshing that the PDES report advocates a very different approach. On page 61, the report says:

[T]he impression exists that there is a tendency in UNHCR to see the disengagement from mandate RSD as an opportunity for reducing and re-deploying staff, rather than an opportunity to seriously invest into the new system, the on-going transition and the effectiveness of UNHCR’s changing role.

UNHCR should work to transition to government RSD when doing so is good for refugees. UNHCR’s resource burden is a genuine and acute challenge, but on its own not an especially convincing reason to seize any opportunity to get governments to take over. A handover will work only if the government is willing and able to set up a fair and effective RSD system. And it will usually require an enduring commitment of assistance from UNHCR, which means that it may not relieve the burdens on UNHCR in the short term.

A big responsibility in a few places

The PDES report’s first recommendation is that UNHCR should develop a set of indicators to define the limited situations where UNHCR should conduct RSD, and when it should be handed over to a government. UNHCR RSD should not be the norm, but in come countries it may make sense. UNHCR should not rush to take advantage of every opportunity to get out of the RSD business, in the absence of indications that doing so will also produce better protection outcomes for refugees.

In a post at Reflaw.org, I suggested three questions that should be asked to decide whether UNHCR should conduct RSD:

• Does UNHCR RSD lead to meaningful protection for refugees?
• Is individual RSD the only way to achieve this protection?
• Is UNHCR more likely than the host government to conduct RSD fairly and effectively in the context where it would be undertaken?

The good news is that UNHCR RSD is not the norm, despite the surge in the number of applications. According to the PDES report, 117 of 148 state parties to the Refugee Convention have government-run RSD systems. More to the point, a short list of 10 countries receive 85 percent of the UNHCR RSD applications globally. Thus, the real burden of UNHCR RSD work falls on just a few UNHCR field offices.

The short list of relevant countries means that the actual potential to responsibly handover RSD to governments will depend on practical and political considerations that will be unique to specific countries. The PDES report expresses considerable optimism about the potential for a handover in Turkey, UNHCR’s second largest RSD operation with close to 45,000 applicants in 2013. There is also some potential for a handover in Kenya (UNHCR’s third largest RSD office). But prospects for a handover in the other top 10 countries may be considerably less auspicious.

The concentration of UNHCR RSD in a small number of places also means that even without a government handover, UNHCR can reduce its RSD burden significantly by finding alternative means of processing specific groups of refugees. Nearly half of the increase in applications from 2011 to 2013 was attributable to just two groups of refugees: Burmese in Malaysia, and Iraqis in Turkey. If UNHCR can find another way to handle these cases, it will have taken a major step toward resolving its RSD resource challenges.

UNHCR tends to have its largest operations in the most difficult circumstances. RSD is no exception. Clearly, it would be best to reduce UNHCR’s RSD burden. But it should also be possible for UNHCR to embrace this work, because in some countries it establishes a foundation for at least limited refugee protection where otherwise there might be none.