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FORUM: What the next High Commissioner should do about refugee status determination

April 20, 2005

The opinions expressed here may not represent the views of RSDWatch or Asylum Access, and are distributed here in the interests of public discussion.

By Guglielmo Verdirame

Co-Author of Rights in Exile: Janus-Faced Humanitarianism

University Lecturer in Law at the University of Cambridge

It is not accidental that, in his UNHCR and World Politics, Gil Loescher chose to organise the history of UNHCR according to the names of the different High Commissioners. A new High Commissioner can effect change rapidly, heralding a new era for the organisation.

One of the major challenges that awaits the next High Commissioner will be the question of refugee status determination. The current situation is not the result of a policy decided at the centre. It is rather the result of a combination of factors: the reluctance of some governments to put in place refugee status determination procedures, the eagerness of many UNHCR field offices to control refugee operations, the tendency within UNHCR for exceptional measures to evolve into the only modus operandi known to the institution.

The next High Commissioner could make a fresh start on refugee status determination, accepting that it is undesirable that UNHCR should continue to be in charge of it in so many places. A new policy in this area could have three main elements, the first one to be implemented immediately, the second one requiring more time, and the third one setting the long-term objective for UNHCR.

The first change would be simply to admit the existence of the problem and to be transparent about current UNHCR practices. Some within UNHCR, especially those working in protection, consider it an embarrassing secret; others have never really contemplated alternatives. A consequence, as anyone who has conducted research on UNHCR-led refugee status determination will know, is institutional defensiveness and denial.

The improvement of procedural standards should also be a priority, although its implementation will require some time. When UNHCR recommends to states standards that it is not prepared to uphold in its own work, it loses credibility and effectiveness. There is, however, a limit to what UNHCR can achieve in terms of procedural standards. Although it sometimes gives the impression of acting like one, UNHCR is not a state; it cannot therefore reproduce the sophisticated combination of administrative and judicial elements necessary to a fair and efficient refugee status determination process.

Awareness of UNHCR’s limits leads us to the third aspect of this proposed policy: the long-term objective should be the demise of UNHCR-led refugee status determination. In each country where UNHCR is currently determining refugee status, protection officers and representatives should be asked by the new High Commissioner to prepare a detailed action plan to end this activity.

There would still be exceptional situations in which UNHCR will have to determine status – in states that are not parties to the Convention, for example. In other cases, it may turn out not to be realistic or appropriate for UNHCR to pull out of refugee status determination. But in many if not most situations, the hand-over to states in the not-so-distant future would be realistic.

Refugee status determination is often considered an intractable problem: the entire refugee protection system hinges on the special status of refugees, and the determining asylum-seekers’ status necessitates a process that is generally believed to be extremely costly and time-consuming. In the UK, for instance, the cost of refugee status determination is generally put at £1 billion a year. Government officials in poor countries may reasonably think that theirs is a lose-lose situation: they either find enormous resources to establish a fair and efficient process, or they expose themselves to criticism from human rights and refugee advocates for unfairness in their procedures.

So, is compliance with refugee law only for the rich? First of all, the exorbitant figures normally cited as authoritative need some explanation. The Institute for Public Policy Research found that more than 75% of the yearly British expenditure of £1 billion consists of welfare support to asylum seekers, and Britain’s expensive policy of detaining asylum-seekers.

The cost of the actual legal procedures is therefore only a fraction of the total figure that is normally given – in the order of the tens of millions of pounds a year. In most of the countries where UNHCR would seek to hand over refugee status determination to the national government, a social welfare system for asylum seekers may not be an option, but the establishment of fair and efficient asylum application procedures could still be within their reach.

Secondly, it should not be forgotten that a strictly individualised asylum determination system is not the only option. States could choose to confer refugee status on a group of persons, thus avoiding lengthy individualised procedures. One of the purposes of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa was precisely to facilitate the grant of refugee status on a prima facie or group basis. There is no reason in law why non-African states should not adopt group determination when they consider it appropriate. International law does not forbid states from going above and beyond the minimum standards.

UNHCR could also benefit from handing over status determination to governments. Its overstretched protection staff could then free up time and resources to spend on core protection activities.

Many refugees know UNHCR as an inefficient and often unfair refugee status determination body; at present, they struggle to see how their ‘judge’ can also be their ‘advocate’. Restoring the proper relationship between refugees and their international protector will require a review of UNHCR’s current practices on status determination.

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