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FORUM: Historical commentary on UNHCR RSD issues

April 21, 2010

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 Dario Carminati

I have read with interest your challenging article and indeed you focused on very important issues. Having worked for UNHCR since 1979 I have been exposed to many of the profound changes that the Organisation has gone through in both qualitative and quantitative terms.

Presentation of transcripts has always been a difficult question as UNHCR had a long tradition of being the guarantor of refugee law standards, because of its specific Mandate, and also of a strict approach to confidentiality (to a certain extent similar to ICRC although less rigid).

A problem with which I was confronted was prevention of fraud linked to the sale of full-proof stories by unscrupulous or corrupted lawyers. It is evident that for asylum-seekers in remote countries with the limited possibilities and high risks of seeking illegal immigration it was safer, cheaper and faster to try the RSD route, especially where UNHCR conducted large resettlement operations. As I see it, presentation of transcripts should be done in the presence of accepted procedures and standards with full consideration of confidentiality and evaluation of what elements of the decision may present a possible protection risk for other asylum seekers. Also, cases where the criminal character outweighed the refugee character may not necessitate disclosure.

In my experience the problem becomes less stressful if the all of the RSD process is transparent and uses safeguards and checklists at each stage. In this respect I see it as important to consider:

  1. Association with dedicated and specifically trained legal NGOs, especially in the important phase of registration where they can identify vulnerable cases, social or humanitarian problems, and assist with documentation/procedures/legal needs vis-a-vis the authorities of the country of asylum, and also identify weak or unfounded cases (that may be referred to manifestly unfounded procedures or simply counseled).
  2. Standardization of documentation and procedures, including appropriate referral systems. (One important one is for counseling of victims of torture or traumatised cases.) The time involved in the process is also important (lengthy procedures create human problems and may endanger the security of the individual. It is also important to try to get refugee story as early as possible after his/her arrival as usually it is the correct one)
  3. Separation of tasks, i.e. different officers for interview and decision with horizontal briefing on each case; different officers for first and second instance of the same case; appeals conducted by more senior/experienced officers with role of Senior Protection Officers and Representatives, plus the involvement of the Department of International Protection Services (DIPS) in specific cases (lack of staff, unusual cases, exclusion cases, etc).
  4. Collection in each field office of jurisprudence with examples of cases, including different situations reflecting COI (particular events, patterns of persecution, special vulnerabilities. DIPS  should institutionalize UNHCR “Jurisprudence.”
  5. Appeals: I do not believe that it would be possible to refer appeals to a different body even within the UN system as RSD under the Mandate cannot be delegated. (An exception: Possibly, if a decision is taken “ultra vares” the procedural aspects could be reviewed by, for instance, the UN administrative tribunal, but not the merits of the case.) As a general principle of law and UNHCR policy, appeals must be conducted by a different and more senior/experienced officer. If not possible in a field office, it should be sent to DIPS at UNHCR headquarters. A fortiori, this must also be the case also for the re-opening of a case (except if its presented on the basis of different circumstances).

There needs to be a historical perspective on how UNHCR’s RSD practice has evolved in order to assess the process and envisage solutions.

It is worth mentioning that while some internal and external talks went on since 1952 on a possible revision of the 1951 Convention, very little has been done to introduce new Protocols to address new realities. There is here a stark contrast with the proliferation of Human Rights instruments as from the 1980s (of course unfortunately reversed after the 11th of September) and the more recent development of regional norms and procedures.

This has left UNHCR to act alone in enlarging its Mandate, including taking up new challenges as internally displaced persons (IDPs) and becoming, unavoidably, attracted into the gray area of illegal migration (also because border control and management have direct implications on the asylum system).

With the massive expansion of eligibility cases being dealt by UNHCR in the late 1970s it became evident that there was a lack of uniformity in the procedures and standards adopted worldwide. RSD done in Karachi was not exactly the same that was done in Ankara or Buenos Aires. Also, the staff involved were initially often only junior professional officers (JPOs). There may have been cases were, also because of high staff rotation (RSD is a very demanding and stressing task specially when is done 8 hours a day and every day) what was left in a file was the documentation, the story and a very scant “not credible.”

In the 1970s and early 1980s UNHCR status determination was conducted (relatively) sporadically and with the close involvement of DIPS. (I recall cases of Senior Officers coming in the 1970s on mission from HQ to interview cases or,  in the 1980s, long discussions with the Deputy Director on specific legal issues of an individual case on case law and matters of interpretation).

It was in the 1980s and 1990s that RSD under the Mandate became a well-established and prominent feature of UNHCR’s operations in the field (Chileans and Iranians cases are an example), albeit, mainly relying on JPOs and a few committed officers. Massive assistance programs were still attracting more if not exclusive attention of the donors and, consequently, of senior management. It is not a coincidence that during that period emergency preparedness was considerably developed in the UN system through the pioneering efforts of UNHCR and it is worth remembering that protection was scarcely present in the first models.

The other problem within UNHCR was the disconnect among different departments such as DIPS/regional bureaus/Department of Human Resource Management (DHRM) in terms of training of non-protection staff on protection issues. With the subsequent funding crisis and the increasing attention of governments on HCR’s expenditures, pressure on reducing administrative expenses led to reduced training and staff limitations and reductions.

The problem was that donors long perceived UNHCR protection staff as an administrative expenditure rather then an operational one. This resulted in less training and diversification of contractual status: first project staff then JPOs, UNV (UN Volunteers), local UNV, interns etc. DIPS partially addressed the problem through a deployment roster and a rapid deployment system (already successfully adopted in emergency situations for non protection staff) of RSD teams but the issue of internal protection training, recruitment and deployment persisted.

In terms of internal procedures only in early 2000 a manual for mandate RSD was produced, thanks to the efforts of “project“ staff (although some field offices confronted with the pressure of RSD had already produced manuals of their own, as in the case of Ankara). DIPS also developed clearer and comprehensive instructions and increased their operational response capacity (with a dedicated section) and networking.

Again the disconnect with DHRM and, to a certain extent, the regional bureaus, persisted as well as an almost chronic shortage of protection staff and resources. In particular, RSD training was in practice provided mainly “on the job.”

Still, as mentioned in RSDWatch’s article UNHCR RSD remains a largely fair system and this is, in my opinion, due to the cumulative impact from UNHCR inspiring on its staff high levels of dedication. However, working with Governmental Eligibility Committees in different regions of the world, I have found the same commitment of Government officials (before illegal immigration became high in the world agenda) often more attentive to human suffering then mere legal reasoning based on objective COI.

One more important issue is the function of UNHCR Field Representatives as they are representing not only the High Commissioner but his/her Mandate. In the late 1990s representatives were made to sign a personal commitment to accountability, the main emphasis being financial, the code of conduct and personnel related issues. Still lacking is clear accountability on protection issues.

Recognising a refugee is the single most important act that a protection officer and, a fortiori, a representative can make as:

  1. It save lives
  2. It can not be withdrawn
  3. It opens the way to durable solutions (especially resettlement)
  4. It may influence Governments on subsequent action.

In my opinion, RSD is a Declaratory Act that requires a formal delegation of authority, especially to Representatives to the field. UNHCR’s Europe Director is right in evoking the judicial/administrative nature of RSD. I personally believe that it is an administrative act of a quasi-judiciary nature, especially when it comes to RSD decisions.

On the issue of Mandate versus Government determinations I do not see so much the difference of standards. (In many past courses conducted at the Humanitarian Institute at San Remo, Italy, Government officials went through the UNHCR Handbook on eligibility as part of their training in refugee law and procedures.) UNHCR officials used to sit in many eligibility Committees (now mainly on appeals).

What is true is the increased involvement of regional organizations and their development of comprehensive guidelines and Directives that, as in the case of the EC become mandatory. This has become necessary as States alone cannot impose domestic rules that have a transnational impact leading to a pull factor if a single country is more lenient or to diversion of flows to neighbouring countries if one is more restrictive. What is becoming increasingly important for UNHCR to foster is its mandate function of overseeing the 51 Convention and universally recognised principles within and among regions.

[EDITORIAL NOTE: Mr. Carminati held various positions in UNHCR from 1979 until 2008. RSDWatch received this as a comment to an earlier post. Because of its substantive depth we have published it as a separate article. The original submission has been edited for style only.]

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