“You talk of refugees as though human rights did not exist which are broader and more important. Once an individual, a human being, becomes a refugee, it is as though he has become a member of another race, some other sub-human group (Rizvi 1984).”

Introduction

The lack of attention to the ways in which refugees’ rights are violated in host countries is astonishing if one considers that the protection of the rights of all people has been on the United Nations (UN) agenda since the adoption of the Universal Declaration of Human Rights, and that refugees have formed an important part of the UN’s work since the Second World War. Refugees should enjoy the same human rights as any other people. However, refugees have traditionally been relegated to the category of ‘humanitarian’ problems, the human rights dimension of their plight being generally ignored.

In practice, to enjoy the most basic human security, it is not enough today for an asylum-seeker to be a human being. S/he must obtain the formal label “refugee” to enjoy even legal recognition as a person in most countries. Without this label, a person will find themselves in fear of the state rather than protected by a government. Living without documents, without UNHCR or government protection, places refugees at imminent risk of detention and refoulement. It leaves them vulnerable to exploitations large and small by their neighbors, landlords, and employers.

After ‘getting in’ to a country, the determination of refugee status is the most critical challenge that people in danger face when they seek protection. There is a growing tendency in Africa to put individual refugees through the process of individual status determination, rather than group-based recognition.

The UN High Commissioner for Refugees (UNHCR) has said that ‘the importance of these procedures cannot be overemphasized… A wrong decision might cost the person’s life or liberty’. For UNHCR, fair refugee status determination (RSD) procedures are ‘essential’ for full application of the 1951 Convention’ The General Assembly has repeatedly referred to the need to establish ‘fair and efficient procedures’ in the asylum process (e.g. GA res. 51/75, 12 February 1997 and GA res. 50/152, 9 February 1996).

Being granted status is also the first step towards refugees taking an active part in governing their own lives and future. Determining their status is the responsibility of the state where they seek asylum. However, in over 60 countries – mainly in Africa, the Middle East and Asia - the local office of the UNHCR handles RSD, making it nearly the largest RSD decision-maker in the world. The fact that so many states have handed this responsibility over to UNHCR (more than half have ratified the 1951 Convention) is indicative of how little some governments have done to implement the Convention, shifting responsibility instead to the UN.

When UNHCR fills the gap, refugees and governments should be able to rely on UNHCR to perform such an essential role in keeping with the highest standards. When human rights groups raise alarm about a government’s refugee policies, they usually call for UNHCR to have more access. UNHCR has given progressive, legally sound advice to governments about RSD. UNHCR is responsible for supervising refugee law, and refugees ought to be able to trust that in UNHCR’s hands their rights will be respected. Yet, on RSD, UNHCR is saying one thing to governments, and doing something much worse.

UNHCR’s RSD procedures have been assessed independently by lawyers, scholars, and human rights organizations in the Middle East, Southeast Asia and East Africa. Their conclusions are the same: UNHCR’s RSD procedures lack the most basic safeguards of fairness, resulting in a high chance of mistakes in a field where there simply is no margin for error. There is an unacceptable risk that people in grave danger will be refused protection when they apply to UNHCR offices. Furthermore, by not following its own advice about RSD procedures, UNHCR sets a bad example for states. The system is broken and needs to be fixed.

What exactly is wrong with UNHCR’s Refugee Status Determination?

The essential problem with UNHCR conducting refugee status determination is that by assuming the role of decision-maker, it compromises its role as protector of refugees with that of being ‘judge and jury’ of their claims. These are contradictory roles and wherever UNHCR places itself in this situation, it loses the trust of refugees. Secondly, its RSD practices lack procedural safeguards and fairness. They are hence high risk for error, and can put people in danger of refoulement in fact if not refoulement in form.

Despite being absent from the text of the refugee conventions, UNHCR has issued fairly comprehensive specific procedural requirements for fair RSD. The earliest attempt conclusions of the Executive Committee of the UNHCR (EXCOM) – in particular conclusion 8 (XXVIII), 1977 – and the Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR 1992a), set out basic procedural requirements. State practice has also over the years fleshed out standards of procedural fairness that apply to refugee status determination, both through case-law and through statutes or administrative regulations (Verdirame and Harrell-Bond 2004). UNHCR has now issued more comprehensive advice to states about standards necessary for a fair and effective RSD procedure. In May 2001, as part of its Global Consultations on International Protection, UNHCR issued its most comprehensive guidance on RSD procedures to date, a background paper called FAIR AND EFFICIENT ASYLUM PROCEDURES. UNHCR added to this guidance in February 2003 with comments submitted to the Council of Europe.

The standards UNHCR has set out are admirable. But, for whatever reason, UNHCR itself has not seen fit to follow them.

We detail a number of specific problems:

Secret evidence. Withholding evidence considered in an applicant’s case – which the applicant involved cannot see or dispute – is a familiar (and very worrisome) part of military and state security trials, but with rare exception it should not be part of RSD. UNHCR told the Council of Europe:

“UNHCR […] recommends that information and its sources may be withheld only under clearly defined conditions where disclosure of sources would seriously jeopardize national security or the security of the organizations or persons providing information.” - [UNHCR annotated comments on the amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, COM(2002) 326 final of 18 June 2002, presented by the Commission (commenting on Article 14).]

But in its own RSD procedures, UNHCR offices withhold nearly all evidence from asylum-seekers, in accordance with a confidential August 2001 memorandum from the Department of International Protection. Evidence routinely withheld from asylum-seekers includes reports from mental health assessments and medical examinations, transcripts of their own interviews, statements by other witnesses, and country of origin information.

Reasons for rejection. UNHCR has advised governments that refused asylum-seekers “should receive a written decision …[and] the decision should be a reasoned one.” [UNHCR, Asylum-Processes: Fair and Efficient Asylum Procedures (May 2001)] But when UNHCR refuses a refugee claim, its offices generally refuse to provide detailed written reasons that could be used in preparing an appeal. In some offices, the person receives a letter with just one or two sentences explaining the rejection. In other offices, rejected applicants get only a three-letter code, such as “LOC” (lack of credibility). Some UNHCR offices give no explanation at all. At the same time, UNHCR offices write, and keep on file, detailed assessments of each case.

Independent appeals. Since 1980, UNHCR has called on governments to provide rejected asylum-seekers with access to an independent appeal. [OAU-UNHCR Guidelines for National Refugee Legislation and Commentary (1980).] In 2001, UNHCR said that this appeal must be to “an authority different from and independent of that making the initial decision.” [UNHCR, Asylum-Processes: Fair and Efficient Asylum Procedures (May 2001).] But in most UNHCR offices, the only appeal is to a different staff member in the same office, usually a colleague of the person who made the original rejection, working under the same supervisors.

Right to counsel. UNHCR has advised governments that “at all stages of the procedure, including at the admissibility stage, asylum-seekers should receive guidance and advice on the procedure and have access to legal counsel.”

In a few UNHCR offices, the principle of legal representation is accepted. But other offices resist the right to counsel. Some UNHCR offices refuse to accept submissions by lawyers. Others refuse to speak with lawyers about their clients’ cases. Still others have questioned asylum-seekers about why they chose to seek legal assistance. In one UNHCR office in the Middle East, a protection officer recently insisted that an indigent refugee pay a significant fee to a notary in order to be represented by a lawyer in a hearing over whether UNHCR would withdraw his refugee status.

Behind these failures are fundamental questions of transparency and accountability. By withholding evidence and the reasons for rejection, UNHCR shields its actions from scrutiny. But this tendency toward secrecy goes beyond individual cases. UNHCR’s RSD operating procedures are generally not released to the public. The Department of International Protection (DIP) memorandum instructing UNHCR offices to withhold evidence from asylum-seekers was never circulated to the public for comment, and to this day it is officially internal.

UNHCR has indicated that it is drafting a new handbook governing its RSD activities, but it has not yet asked for public comment. It is worrisome to think that procedural standards are being re-debated within UNHCR simply because this time UNHCR offices are meant to apply them. There is no plausible reason why the legal standards of UNHCR’s RSD procedures should differ from the high standard that it recommends to governments. When UNHCR tells the public that certain standards are essential for refugee protection, these standards should automatically be implemented in UNHCR's own offices.

Prima Facie recognition of refugees and their right to identity papers

Although reforming RSD procedures themselves in urgent, it is also important to reduce their importance. Individual RSD is, as a rule, intensive, burdensome on all involved, high stakes, and high risk for error. The more UNHCR and governments can find other ways to recognize refugee status, the better.

In cases of mass movements where it is impracticable to conduct individual status determination of refugees seeking asylum, governments may grant prima facie recognition to the group on the basis of nationality. Prima facie recognition may be granted either under the 1951 Convention or the Organization of Africa Unity (now African Union) Convention (OAU).

This makes sense; it reflects the practice in post-World War II Europe when all refugees were recognized on the grounds of nationality. When Nansen, appointed by the League of Nations, was first named Commissioner for Russian Refugees, all Russian refugees in Europe after the revolution were entitled to recognition. Similarly, everyone knows there is war in southern and western Sudan; people fleeing that war should simply have to ‘prove’ their nationality.

Decisions to grant prima facie recognition to particular nationalities should be ‘gazetted’, i.e. as legal decisions they must be published officially. This is only the first step; every adult refugee must be issued with an identity card (1951 UN Convention (Article 27). The Conclusion of the Executive Committee of UNHCR (EXCOM), in 1993, also reiterated the necessity of the issuing of personal documentation as a device to promote the protection of the personal security of refugees (No.72 (XLIV).

Nansen went much further. Realizing that movement was necessary to find solutions to their plight, the Nansen Passport was introduced, allowing refugees to move to another country where they could find, for example, employment or education or re-join relatives. The Nansen passport thus served refugees as a passport, allowing them to travel between states. It was the forerunner of today’s Convention Travel Document (CTD). Article 28 of the 1951 UN Convention provides that ‘Contracting States’ shall issue travel documents, that is, CTDs to refugees lawfully in their territories for the purpose of travel outside their territories. (There are only two reasons for which Contracting State can deny refugees this right: compelling reasons of national security or public order.)

In Africa, where most refugees are sent to camps or settlements, the only identification the vast majority receive is a family ration card, which usually includes only an indication of the size of the family with marks to punch when rations are received or non-food items are distributed, not their name.

What is being done?

At the International Consortium of Voluntary Agencies (ICVA) Pre-Executive Committee October 2004 meetings, four lawyers from Africa and the Middle East successfully lobbied for ICVA to call for an independent evaluation of UNHCR RSD. The following are excerpts from final NGO Statement to UNHCR’s Executive Committee on Evaluation and Inspection Activities:

“We would suggest that such an independent global evaluation be carried out by a team that includes international human rights lawyers, international and national NGOs working on refugee issues, academics, and legal aid practitioners. The issues that should be examined in the evaluation include an inventory of the RSD procedures that are applied in each UNHCR field office, with an examination of the possible solutions to the political, financial, and human resource constraints that contribute to RSD procedures that do not fulfill practices advocated by UNHCR. The evaluation should recommend rights-based RSD procedures to be followed consistently by all field protection officers with a mechanism to ensure their implementation.”

And from the Statement on Protection:

“Further, while recognising the important role played by UNHCR in asylum determination procedures in many countries worldwide, NGOs have concerns that some of UNHCR's refugee status determination (RSD) practices in some countries in Africa, the Middle East, and Asia do not always meet the standards of fairness to which UNHCR urges states to adhere. … UNHCR should not see its role in RSD as a substitute for government-run procedures. UNHCR should make it a priority that governments take over these activities and build their capacity to do so. We call on UNHCR to initiate public consultations on the new draft refugee status determination procedures (from – follow ‘What’s Hot’).”

It will be important to follow this initiative carefully over the next year and at the 2005 ICVA Pre-Excom meetings to ensure the issue is actively followed up.
What can you do?

The first step to change the situation for refugees is to inform yourself. While presuming that readers of Pambazuka News, are committed to human rights, too few human rights organisations consider refugee rights as part of their mandate. In your country, as in so many, refugees are probably segregated in camps and those who manage to live elsewhere are usually trying to remain invisible to authorities for the reasons of lack of proper papers and the right to live outside of camps. Join the US Committee for Refugees’ Anti-warehousing campaign and begin to study and expose the way refugee rights are being violated in your country. Lobby for their minimal right to freedom of movement (http://www.refugees.org/warehousing)

For those who think of refugees as ‘just another problem among so many’, remember that getting it right for refugees may be the best way to get rights for all! Is not the extent to which refugee rights are upheld, a barometer for the extent that human rights are generally respected in any society? Human rights are indivisible, interrelated and inter-related; focusing on the violations of the rights of refugees (who represent the most marginalized and unprotected population) is perhaps the most effective ‘entry’ point for improving the observance of human rights for all members of any society. Any investment in promoting the rights of refugees is an investment in a more just society.

Find out if there are any legal aid clinics in your country who would be in a position to represent refugee clients whatever their problems might be and encourage them to consider getting the necessary training to expand their clients to include refugees. The Forced Migration and Refugee Studies Programme ([email protected]) at the American University in Cairo (www.aucegypt.edu/fmrs) and AMERA Egypt, a refugee legal aid clinic ([email protected] ) both provide training opportunities. Oxfam, through Reach Out also offers a Refugee Protection Training Project for all NGOs (http://www.reachout.ch/). Where legal aid clinics for refugees exist, support their work and see how you might get involved.

Clinics providing legal aid for refugees have been established in a few countries in the ‘south’, in Africa, in 1999, the Refugee Law Project in Kampala (www.refugeelawproject.org); the Kenyan Refugee Consortium, Nairobi ([email protected]); AMERA-Egypt in Cairo (www.amera-uk.org). Others are the Frontiers Centre in Lebanon ([email protected]) and the Istanbul Refugee Legal Aid Project in Turkey ([email protected]).

If you are a lawyer, learn how to take refugee cases that have been unfairly dealt with by the legal system in your country to the Africa Commission. At its 35th Session the Africa Commission nominated a Special Rapporteur on Refugees and Displaced Persons in Africa. He is Mr. Bahame Tom Mukirya Nyanduga. His address is: P. O. Box 7239, Dar es Salaam, Tanzania; his E-mail: [email][email protected]; [email][email protected]

In the end, two points are absolutely essential. First, don’t rely blindly on the UN. A strong UN is essential for a just and peaceful world, but that does not mean that UN agencies can be trusted anymore than governments. They must be transparent, they must be accountable, and we must watch to make sure they practice what they preach.

Second, this entire discussion has been devoted to how we determine whether a person is a “refugee” under the law. But we ought to remember: We don’t need UNHCR or a complicated procedure to recognize another person as a human being. And that ought to be enough to give refugees the most essential human rights.

* Barbara Harrell-Bond is Distinguished Visiting Professor, Forced Migration and Refugee Studies Programme, American University in Cairo. Mike Kagan is a refugee law specialist. Please click on the link below for references.

* Please send comments to [email protected]