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ANALYSIS: On the tough issues, UNHCR pleads incapacity

September 19, 2005

The publication of Procedural Standards for Refugee Status Determination under UNHCR’s Mandate is the UN refugee agency’s most important public step so far in the drive for reform of the way the United Nations decides individual refugee cases. Yet, despite some important steps toward greater fairness and transparency, UNHCR appears to want to lower expectations for any further reform.

Progress on some fronts, but stalemate on others

For the first time, refugees, asylum-seekers and their advocates have access to a comprehensive statement of UNHCR policy on refugee status determination procedure, covering everything from registration to the handling of confidential files. Countering a tendency for RSD to be dealt with on an ad hoc basis, UNHCR stated clearly that it regards RSD as a “core protection function” with “profound implications for the life and security of the individuals concerned.”

On two key issues, the newly published standards are a victory for a growing movement of local legal aid programs and refugee rights activists who have been campaigning since the late 1990s for UNHCR to reform its RSD policies.  First, UNHCR endorsed the role of legal representation in its own RSD procedures, and stated clearly that asylum-seekers have a right to be informed throughout the process.   Second, UNHCR called on its field offices to give specific written reasons for rejection when they turn down refugee applications.

But progress was less evident on two other issues: Ending the widespread use of secret evidence and establishing an independent appeals system within UNHCR. On both subjects, a wide gap remains between UNHCR’s advice to governments, established human rights standards, and UNHCR’s own policies.

What standards apply?

In its introduction to the new standards, UNHCR’s Department of International Protection (DIP) UNHCR acknowledged the gap between what UNHCR says to governments, and what it actually does in its own offices:

The RSD Procedural Standards reflect the particular constraints and challenges under which UNHCR must conduct RSD. They are not intended to identify standards for national procedures, which in certain States may exceed the standards proposed. (Bold face in the original)

The new standards do not specify the “constraints and challenges” that impede UNHCR’s RSD operations. But the message to refugees is implicit: We can’t do any better. The message to governments is explicit: Follow what we say, but not necessarily what we do.

At the same time, UNHCR acknowledged that its RSD procedures need improvement:

Recent evaluations of UNHCR Offices indicate that [minimum] standards have not been consistently achieved, and have highlighted the need to adopt a more harmonized approach to the development and implementation of UNHCR RSD procedures to enhance their quality, fairness and integrity.

This appears to be an attempt to change the terms of the debate. Most independent critiques of UNHCR RSD have not highlighted inconsistency per se. Rather, the main criticism has been that UNHCR procedures were consistently inadequate. By focusing on harmonization, DIP avoids the question of whether UNHCR can actually justify its departure from accepted minimum standards of fairness.

Resurrecting an old argument

By saying that it can’t meet the standards set for governments, UNHCR is re-using an argument that it introduced, and then withdrew, eight years ago. In its short-livedComprehensive Policy on Urban Refugees, issued in March 1997 and then revised later the same year, UNHCR argued that its procedures could not equal those of “sophisticated and resource well-endowed governments.”

The re-emergence of this idea is likely to trouble refugee advocates. As Michael Alexander wrote in 1999 in his pioneering study of UNHCR RSD, governments in the developing world often perceive UNHCR to have more resources and expertise than they do. If UNHCR establishes lower standards for itself because of lack of capacity, it risks setting a dangerous precedent for governments in Africa, Asia, the Middle East and Latin America. There is no provision in human rights law to compromise on due process just because a government lacks resources.

Even if in theory lack of resources could justify compromising standards, it is debatable whether UNHCR’s actual constraints justify the gaps in its RSD procedures. It is difficult to see what special “constraints and challenges” UNHCR faces that would justify its policy of withholding evidence from asylum-seekers. It appears equally plausible that UNHCR might use secret evidence for the same reason governments are tempted to do so: Transparency would make it easier for asylum-seekers to challenge UNHCR’s decisions.

On the question of appeals, it may be easier to understand UNHCR’s concerns about resources. More than any other procedural reform, providing an independent appeal system would require structural changes within UNHCR.

UNHCR’s headquarters in Geneva sets standards and gives advice on RSD, but the actual work is left mainly to the agency’s field offices. Some UNHCR offices handle thousands of RSD cases each year. These large office have enough staff that they could create truly independent internal  appeals units. But that would be more difficult in smaller offices. Most of the offices where UNHCR conducts RSD receive fewer than 1000 applications a year.

Providing an independent appeal to all rejected applicants would likely require setting up regional appeals bureaus or an appeal system in Geneva. Resource constraints on UNHCR do not make such an innovation impossible, but they do require substantial will on the part of the High Commissioner.

Focusing the debate

By answering human rights criticisms on some key issues, UNHCR’s new procedural standards take significant steps forward. But by leaving gaps on the two toughest issues — the use of secret evidence and the right to an independent appeal — the new standards are unlikely to end the debate. Since these are central safeguards of due process, significant doubts still remain about whether UNHCR RSD procedures are yet minimally fair or effective.

By claiming that it cannot be held to the same standards as governments, UNHCR is trying to lower expectations at a time when there are loud calls for UN accountability, and a growing willingness of human rights organizations to scrutinize the records of humanitarian organizations. UNHCR’s insistence on using secret evidence parallels government efforts to compromise due process in the context of the “war on terrorism.”

But the central issue will remain the need for fair and reliable RSD procedures at an agency that decides more refugee cases than any government, affecting tens of thousands of lives every year.

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