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NGO Comment: Toward a rights-based policy on urban refugees

June 12, 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

Africa Middle East Refugee Assistance (AMERA)

UK-registered charity with a refugee legal aid program in Egypt

Frontiers (Ruwad)

Lebanon-registered non-government organization

This commentary was prepared in May 2005 as part of an ongoing reassessment of UNHCR policy toward refugees in urban areas. It was submitted in response to a UNHCR request for NGO comment.

Organizational perspective

We are pleased to submit these comments, which we hope will be of assistance to the Office of the High Commissioner in revising policy relating to refugees in urban areas. We are especially encouraged by UNHCR’s embrace of a rights-based approach (RBA).

AMERA and Frontiers are rights-based NGOs focused on the protection of refugees in the Middle East. AMERA operates a legal aid and counseling program for refugees and asylum-seekers in Cairo, Egypt. Frontiers offers legal aid and counseling to refugees and asylum-seekers in Beirut, Lebanon, and also conducts research and advocacy on behalf of refugee rights in Lebanon.

Foundations of a rights-based approach

A challenge in developing a rights-based approach to UNHCR urban policy is the fact that the category “refugees in urban areas” does not exist in international law. In law, refugees are protected no matter where they live within a country; in terms of a government’s obligations to respect refugee rights, refugees in a city are no different than refugees in any other area.  The 1951 Refugee Convention actually prohibits any legal distinction between refugees depending on where they happen to live.  Article 26 provides: “Each Contracting State shall accord to refugees lawfully in its territorythe right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances.”

A rights-based approach should therefore begin with the principle that refugees have freedom of movement and the right to choose their place of residence within their country of asylum. Living in an urban area or for that matter in a rural area does not directly affect the rights that a refugee should be able to enjoy. Nor does it affect UNHCR’s mandate obligations. We believe the terminology shift from “urban refugees” to “refugees in urban areas” is welcome as a means of highlighting the fact that place of residence does not define a separate category of refugees, nor a separate category of rights.

This does not mean there should not be an urban policy, but it means that we should carefully delimit its purposes. A rights-based urban policy will focus on those issues in which refugees in urban areas are actually differently situated from their rural counterparts. For example, economic differences in urban areas may naturally lead to a different approach to promoting ‘self-sufficiency’. There are more sources of employment in a city and often more money circulating. Public health concerns may be different in urban areas. Where such differences exist, having an urban policy makes sense.  UNHCR policy will neither be rights-based nor effective if it aims to prevent refugees from migrating to cities. Rural to urban migration has been going to for hundreds of years on all continents, and is a natural expression of refugees’ right to choose their place of residence.

In the past, UNHCR policy too often tended to treat urban settings as merely the opposite of camps settings. The phrase “urban refugee” came to become equated with non-camp refugees. There was, after all, no corresponding “policy on rural refugees.” Since in many countries the standard refugee policy administered by UNHCR was camp-based, urban refugees were treated as exceptions, as people who opted out of the norm, and perhaps more negatively as people who were resisting official policy. Urban refugee policy therefore focused extensively on the issues of “spontaneous arrivals” and “irregular movers,” terms indicating that refugees in urban areas were violating official norms.

Perhaps the greatest manifestation of the camps-focused approach to urban policy has been the rural-urban dichotomy in refugee status determination (RSD). In much of Africa and in other regions as well, rural refugees generally have their legal status recognized through prima facie RSD. Urban refugees, on the other hand, generally have their status recognized through individualized RSD.  Often, two refugees of the same nationality, living in the same host country, will find themselves subject to two very different procedures. It is this procedural difference which makes the urban refugee category legally meaningful in the south, even as the substance of the law takes no notice of whether someone lives in a rural or urban area.

Refugee status determination is in many cases just the beginning of individual case assessment in urban areas. A refugee in an urban area is in many countries subject to an extensive procedure of individual scrutiny including an examination as to whether s/he has a “legitimate” reason for leaving the rural camp. We would argue that refugee policy has too often featured a rural-urban dichotomy in procedures in which refugees in urban areas are subject to extensive scrutiny and suspicion.

A rights-based policy must be founded on refugee freedom of movement, among other rights, and therefore cannot be linked to a system that confines refugees to remote camps. Neither refugee legal status nor the procedures for determining legal status should be affected by the location where a refugee chooses to live. RSD procedures and policies should in principle be adopted throughout a host country so that two similarly situated refugees are subject to the same procedure no matter where they choose to reside.

Reducing reliance on individual RSD

As noted above, one of the definitive features of current and past UNHCR urban policy has been extensive reliance on individual refugee status determination (RSD). This poses two related challenges. First, UNHCR’s RSD procedures fail to meet UNHCR’s own standards of fairness, which increases the risk that refugees in bona fide danger of persecution will be errantly refused protection. Second, individual RSD drains precious resources.

The first problem, lack of fairness in UNHCR RSD, has been discussed extensively elsewhere and is the subject of a separate ongoing process of policy re-assessment at UNHCR. For more background, we would refer to www.rsdwatch.org, which includes a bibliography of detailed studies of UNHCR RSD. Because of the rural-urban dichotomy in refugee status determination, the risk of errant rejection falls disproportionately on refugees in urban areas.

The second problem, strained resources, is a concern for two reasons. First, lack of resources hampers UNHCR’s capacity to improve its RSD procedures. Second, the extensive reliance on individual RSD diverts UNHCR’s human and financial resources away from other protection and assistance activities. Since UNHCR’s urban policy has generally been predicated on individual RSD, UNHCR’s efforts to improve the welfare of refugees in urban areas have been essentially handicapped. Because RSD requires so many resources, there are fewer protection officers available to train police in refugee law, facilitate children’s registration in school, or promote refugee rights with government officials. There is less money available to expand social and economic services.

We believe that one of the major necessary steps in improving urban policy is to reduce reliance on individual RSD by expanding the use of prima facie or group-based mechanism of refugee status determination. Such procedures are common place in camp-settings, and can also be applied in urban settings.

In Egypt and Lebanon over the past five years, between 75 and 90 percent of the asylum-seekers came from countries with well-known conditions of widespread human rights abuses and violence: Sudan and Iraq. Asylum-seekers from these countries were routinely granted protection on a prima facie basis in Uganda, Kenya, and Iran. Yet when asylum-seekers from these countries arrived in urban settings in the Middle East, they were subject to individual RSD. We believe it would have prevented dangerous errors and better used UNHCR resources if they had been recognized on a prima facie basis. UNHCR might have maintained individual RSD for the remaining asylum-seekers who come from a more diverse set of backgrounds. But this small remaining caseload would have been far more manageable, and far less resource intensive.

A rights-based approach to “irregular” movement and the definition of “protection”

The “irregular mover” question has long been among the most controversial aspects of urban refugee policy. A rights-based approach must, at a minimum, define irregular movement restrictively in accordance with the definition endorsed by the Executive Committee (EXCOM). A refugee should not be considered an irregular mover if s/he merely passed through a country where protection might have been available in theory.  Unless a refugee actually had protection in a first country of asylum, s/he should not be considered an irregular mover. EXCOM Conclusion No. 58 (1989).

In order to apply the EXCOM standard, it is essential to clearly define effective protection. Currently, UNHCR offices tend to regard any country where there is basic protection from non-refoulement to be sites of effective protection. This limited approach will tend to penalize refugees who move on from countries where their basic security is protected, but where their ability to find legal work, send children to school, or access healthcare is restricted. UNHCR policy cannot be considered rights-based if it resists refugee choices to seek to leave countries where essential social and economic rights are severely restricted or non-existent.

UNHCR’s policy toward irregular movement has been predicated on the assumption that protection programs such as resettlement act as pull factors, attracting refugees who do not really need to migrate. We believe that this is an over-broad and under-tested presumption. UNHCR long believed that the resettlement programs operated in Cairo drew increased numbers of asylum-seekers from Sudan and Somalia. Yet today there continues to be an influx of Sudanese seeking asylum even a year after the temporary suspension of RSD reduced resettlement opportunities in this country.

It is essential that UNHCR state clearly that its mandate is to promote refugee protection; UNHCR is not responsible for migration control. The Refugee Convention makes no mention of irregular movement. Part of protecting refugee rights is recognizing refugees who make rational choices out of perceived self-interest, including the choice to move on to a new country when they cannot meet basic needs in their first country of asylum.

We therefore recommend that UNHCR limit its application of the irregular mover principle in two key ways. First, effective protection should be defined as enjoyment of all human rights, including social and economic rights, not just non-refoulement. Hence, assessment of whether a refugee moved “irregularly” should include, among other things, an assessment of whether s/he had the right to work as guaranteed in the Refugee Convention after three years of residence. It should also include an assessment, where relevant, of whether children had effectively enjoyed the right to education on par with nationals, as guaranteed by several bodies of international law, and access to healthcare. Beyond legal standards, UNHCR offices should adopt flexible standards that reward refugees who migrate as part of an attempt to increase their self-sufficiency; it should be recognized that irregular movement may be an attempt by a person to escape dependency or destitution, which should also be an objective of UNHCR policy.

A second approach on the irregular mover issue is to stress that even if a refugee migrates irregularly, s/he is still a refugee. Only benefits that are beyond the minimums prescribed by law, such as resettlement, should be restricted. UNHCR should still promote his or her rights, and should not withhold any assistance if doing so would prevent him or her from leading a dignified life. UNHCR should facilitate legal recognition as with any other refugee. Finally, since application of the irregular mover rule is in effect a decision that some other country should be responsible for protection, UNHCR should promote the refugee’s safe and legal return there. In short, UNHCR may work to reduce incentives for economic irregular movement, but it should not punish irregular movement.

Promoting government responsibility

We would close our comments by stressing that a rights-based approach to refugee protection should emphasize government protection, rather than UNHCR assistance. The key to self-reliance for refugees is their ability to exercise their basic rights in their country of asylum. Dependency on UNHCR assistance or resettlement is in most cases a result of restrictions on refugee exercise of key rights.

For these reasons, UNHCR should consider its primary mission to promote refugee access to rights. Other steps, such as direct assistance or resettlement referral, are effectively substitutes for the host government’s responsibility and should be undertaken only in emergencies or as a last resort.

We are not advocating that UNHCR stop its involvement in providing subsistence allowances or funding educational or healthcare programs as needed. To the contrary, these programs will often need to be expanded because so many governments exclude refugees. However, we are advocating that UNHCR not immediately launch such programs whenever it finds refugee needs. A first course of action should be to explore the possibility of refugee inclusion in systems that already exist for nationals of a host country and promote donor assistance to these host government institutions.

Often, refugees in urban areas may be entitled in theory to government services, but may be excluded in fact due to administrative confusion or lack of knowledge. UNHCR can be instrumental in removing such barriers and facilitating refugee access, without becoming itself a direct provider of services in all cases. UNHCR should more frequently engage local lawyers to challenge regulatory obstacles that block refugees from accessing such services. In many countries, there are substantial social and economic support systems that could assist refugees that have been hidden or ignored. UNHCR should not easily accept legal prohibitions of refugee access to necessary rights, and should be willing to push governments to live up to their international obligations. There should be particular attention to the right to healthcare, the right to education (including secondary and tertiary education), and the right to work.

Conclusion

We hope that these comments will be helpful to the High Commissioner in revising his policy in urban areas, and look forward to continued public dialogue on these and other matters.

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