It is time for me to announce in writing something that has been obvious for quite awhile. RSDWatch is dormant.
This does not mean that UNHCR’s RSD operations are no longer relevant. Quite the contrary. UNHCR RSD is as central to global refugee protection as ever. Moreover, for UNHCR to do the work it needs to do, UNHCR needs independent people and organizations to disseminate information and critique. UNHCR needs watchdogs, a lot of them. I mean no criticism of UNHCR in this. I would say the same thing about any official body that makes decisions impacting the lives of vulnerable people who have little political voice.
The reforms UNHCR made to its RSD policy this year reflect this situation. The changes are significant and positive, and yet there is a great deal more that must be done.
This is about me. Five years ago I moved back to the United States to teach law and direct the Immigration Clinic at the University of Nevada, Las Vegas. For the first time, I was able to practice law in my own country, to invoke the US Constitution, to wonder why immigrants have so much difficulty asserting the rights that my parents and elementary school teachers told me I was supposed to be able to take for granted. I’ve loved it.
I still care about global refugee policy, and I will still engage with it when I think I have something to offer. Some of the people I admire most in this field focused on other issues for various phases of their careers, and have returned to refugee policy later. I hope to follow that path.
If anything, the fact that RSDWatch remains relevant made it more difficult for me to admit to myself that I was no longer doing the job that I set out to do when I started this blog. Running RSDWatch implies an ongoing commitment to provide regularly updated information and commentary. I have not been doing that for awhile.
So, the fact of the matter is, RSDWatch is dormant until further notice.
In February, UNHCR published revisions to its Procedural Standards on Mandate Status Determination. Among a number of positive changes, perhaps the most important reform concerns access to evidence in UNHCR. This had been the subject on which UNHCR most stubbornly refused to embrace fundamental due process, essentially insisting on hiding key evidence from asylum-seekers in its own offices, even as it told governments to be more open.
The new policy is unquestionably progress, breaking a longstanding stalemate, and suggesting – I hope – the potential for more reform down the road. And yet, UNHCR’s policy remains a violation of refugees’ due process rights. If UNHCR were subject to independent judicial review, I would be eager to challenge the new policy, even as I applaud it as a step in the right direction.
To understand this mixed review, let me provide a little background.
Under the old evidence withholding policy, UNHCR offices would generally refuse to let asylum-seekers see the transcript of their own RSD interviews. This meant that applicants could not easily detect and correct factual misunderstandings about their cases. And it turned the process of preparing an appeal of a negative RSD decision into an exercise in guesswork.
Access to interview transcripts have been the main problem, simply because the applicant’s own testimony is typically the primary evidence in RSD. But the evidence withholding problem went farther. Sometimes, UNHCR would solicit external opinions on an applicant’s case, or even send an asylum-seeker for a medical exam to evaluate physical evidence of torture. But then UNHCR would refuse to let the asylum-seekers see the reports that had been written about them.
UNHCR internal policies contrasted starkly with the advice UNHCR gave to governments, as I wrote back in 2010: “UNHCR criticized some EU states for giving applicants access to their interview transcripts only after a decision has been made on their cases. By contrast, UNHCR policy prohibits its field offices from giving such access at any stage.”
This issue has been debated for a long time. Personally, I began criticizing this policy around 15 years ago. Privately, UNHCR officials often explained their reluctance to give asylum-seekers access to the evidence in their own cases in terms of the chaotic contexts in which UNHCR offices often conduct RSD. The concern that I heard most often was that in insecure environments, documents given to asylum-seekers might fall into the wrong hands, perhaps endangering the asylum-seekers themselves.
I never thought this made much sense. Refugees write down their personal stories all the time – to submit to UNHCR, to apply for resettlement. There are already lots of documents with intimate details of refugee stories in the hands of refugees. Moreover, if asylum-seekers don’t want to keep a copy of the evidence because it raises a security problem for them, they don’t have to. It’s an option. It seemed to me that this particular explanation was paternalistic, and reflected some of the more elitist, self-protective instincts of humanitarian agencies. It seemed most plausible to me that some UNHCR staff resisted transparency in RSD for the same reason government officials usually resist transparency. It is not in their self-interest to make it easier for outsiders to scrutinize their work.
To be clear, the resistance to evidence disclosure was not universal in UNHCR. In particular, UNHCR’s office in Lebanon started an experiment in a more open approach nearly a decade ago.
This is the background to the new policy. The new policy is as follows:
UNHCR must share, to the extent possible, all medical, psychiatric and other expert reports as well as any other documents submitted by or on behalf of the Applicant. Legal representatives may, on request, access on the UNHCR Office premises and under supervision, or through other secure and appropriate means as established by UNHCR Offices, the transcript or audio recording of the Interview with the Applicant.
This is clearly a compromise position. It allows evidence to be reviewed only on premises, substantially increasing the difficulty of looking at them. And it only allows legal representatives to look at the documents. The applicants themselves are not allowed to see the evidence. These are restrictions I would normally expect in an unusual national security context, not in routine RSD cases. The limitations reflect a remarkable distrust of refugees on the part of the High Commissioner for Refugees. The applicant, not by the lawyer, holds due process rights. But the new policy privileged legal representatives.
Since most RSD applicants do not have legal representatives, they cannot take advantage of the new policies. There is a danger that legal aid organizations – the main voice for RSD reforms – will effectively be bought off by this reform, because they will be able to access documents for their clients even though most asylum-seekers cannot.
On the whole, I probably shouldn’t be so pessimistic. UNHCR is giving access to evidence to those people most able to pointedly argue that UNHCR erred particular decisions. That is a breakthrough. UNHCR is finally, grudgingly, acknowledging that disclosure of evidence should take place. UNHCR is a big organization that evolves slowly. This step may lead to more reform later. As UNHCR staff get used to the idea that evidence can be disclosed to lawyers, maybe the general ideal of evidence disclosure will gradually become less shocking.
Roundup of Other Reforms
Interpreters are Not Expert Witnesses
Over the years, UNHCR RSD officers have occasionally turned to their interpreters – often refugees themselves – to cast judgment on the veracity of RSD applicants. This is now a violation of policy:
Eligibility Officers should not call upon Interpreters to assess the credibility of an Applicant’s account, or to investigate or comment on the reliability of evidence provided by an Applicant, except as it relates to the use of language and dialect by the Applicant.
It’s Official: Legal Aid is a Good Thing
Early in my career, I often faced UNHCR officials (some quite high ranking) who thought the idea of asylum-seekers having lawyers at UNHCR officers. Some country representatives devoted considerable creativity to finding reasons why they could not possibly allow legal representation in their RSD procedures. I’m not sure every country representative will be convinced, but this is now the UNHCR official policy:
Legal representation is an important factor in establishing fair and transparent mandate UNHCR RSD procedures and strengthening the quality of decision-making. … UNHCR Offices should encourage the participation of responsible, high quality legal representation in mandate UNHCR procedures. Wherever possible and appropriate, UNHCR Offices should develop partnerships with established legal aid providers that offer responsible, high quality legal representation in mandate RSD procedures, and which have appropriate systems of training and ensuring accountability for their staff.
Applicants may be accompanied by their legal representative during any RSD or Appeal Interview, as well as any Interview in which UNHCR gathers information that is relevant to the determination of the Applicant’s refugee status or the cancellation, revocation or cessation of his/her refugee status.
On the whole, UNHCR RSD continues, slowly, but in the right direction.
The New York Times is closing out 2014 by asking whether human rights law is a failure, a critical question that human rights advocates would do well to ask themselves more often (or perhaps ask themselves too often, depending on which one you are talking to). It’s also a critical question for refugee policy, which is often torn between rights-based and looser humanitarian approaches.
The ensuing debate between the University of Chicago Law School’s Eric Posner and Human Rights Watch’s Kenneth Roth is interesting, but quickly becomes unnecessarily constricted. Posner says human rights treaties ask too much from developing countries. Human rights law is honored in the breach, at best. Roth replies, in essence, that at least we know there’s a breach. Human rights law fills a vacuum by setting standards.Posner and Roth start to repeat themselves, which should have clued the editors in to the need to bring in additional voices.
Two disturbing things happen in this narrow debate. First, human rights advocates should be alarmed that Roth, one of their standard bearers, had rather thin ammunition with which to respond to the charge that human rights law doesn’t accomplish much. Often when governments do the right things, there are domestic political explanations that make it hard to give clear credit to international human rights law. The mere fact that a government mentions a human rights treaty does not mean that the treaty caused it to act.
Second, Posner admits an alarming sympathy with the Chinese government’s repression of political dissent. We ought to recognize that democracy has an imposing ideological rival, namely, stability. Posner speaks for the governments of China, Russia, Egypt and many other countries by arguing that more freedom will breed chaos. Since the end of the Cold War, Americans in particular have been lulled into believing that there are no more great global debates. Not so. And it is not at all clear who will win the war of persuasion in the debate between democracy and stability.
It’s unfortunate that the editors had a narrow vision of what human rights is before choosing debating partners. The debate in The New York Times is about only two things, really: standard-setting (through treaties) and naming and shaming of violators. This is what the human rights movement became known for after World War II through the 1970s, an era that gave birth to most of our important human rights treaties and to groups like Amnesty International and Human Rights Watch.
Posner identifies a key weakness of this early approach, which is that it considers it success to merely announce a right or publicize a rights violation. Remedying actual rights violations remains a more distant goal. The human rights movement needs more focus on building an infrastructure of implementation, which is not always as conducive to publicity or fundraising. The good news is that many less prominent human rights activists have focused much more on implementation, one person at a time. Efforts to develop legal aid in the geopolitical south – a movement in which refugee rights organizations have been at the vanguard – are an important part of this response.
Equally important is the effort to expand the influence of human rights beyond lawyers. That’s why it is so important that humanitarian agencies like UNHCR continue to work on integrating rights-based approaches into their traditional aid and development work. The international community has done more to develop an infrastructure to deliver emergency humanitarian aid than it has to, say, respond to systemic torture or genocide. But these aid organizations can become more integrated into the human rights movement (and they can understand their own work in more human rights terms). But we cannot expect every group doing human rights work to put out a constant stream of press releases and condemnatory reports in manner of HRW.
A limited vision of what human rights work means will limit the movement’s ability to grow and correct for its inherent weaknesses. But the good news is that many groups at the frontlines moved beyond these limits a long time ago.
Over at UNHCR’s Global Views blog, I offer some ideas about how UNHCR can reorient it’s thinking about mandate status determination to cope with the reality that it will not be possible to get every government to take over RSD.
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.
UNHCR, beginning to make its admirable notice and comment practice a routine, is seeking comments on two new proposed guidelines, one on Article 1D and its application to Palestinian refugees, and the other on the definition of “habitual residence.” Deadline is January 9.
Regarding Article 1D, this appears to be UNHCR’s third bite at the apple, having issued a Note in 2002, and a Revised Note in 2009. Article 1D states that the Refugee Convention (and UNHCR’s Mandate) “shall not apply to persons who are at present receiving from [UNRWA] protection or assistance.” But it then goes on to say that “when such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.”
Shockingly, the application of a convoluted treaty provision to the world’s most contentious refugee problem has proven to be a challenge.
Let me take the opportunity here to highlight one issue related to Article 1D on which I have done a good deal of work: Palestinian refugees in Lebanon, Jordan or the Occupied Territories who are in theory eligible for UNRWA assistance, but who cannot actually register with the local UNRWA office because of host state policies, UNRWA practice/policy, or a combination thereof (see here for a real life illustration – though note that the data may be out dated).
In the 2009 Revised Note, UNHCR regrettably indicated that it would not have a mandate over any such a Palestinian, leaving a theoretically eligible refugee without any protective UN agency. At the time, I called this a breach of UNHCR’s mandate, because it imposed “a group-based geographic exclusion of Palestinian refugees” without sufficient attention to individual circumstances and in conflict with the “continuity of protection” principle.
I have had an initial read through the new proposed Guidelines, and I am not yet clear if they resolve this problem definitively. But I’ll return to this question after I’ve had more time to study them.