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The purpose of RSDWatch, then and now

December 20, 2012

I first encountered refugee status determination by UNHCR as a law student in Cairo in 1998, and I was appalled.

My first client endured a hostile interview. I was not allowed to go with him. To find out UNHCR’s decision on his application, he had to push through a crowd pressed up to an iron gate, elderly men and mothers with children squeezing with the rest, waiting for their names to be shouted aloud by a security guard so that anyone who wanted to know the identities of the asylum-seekers could hear. When my client’s name was called, a crumpled piece of paper was passed to him through the crowd. “Rej” was scribbled in the corner, over a faded UNHCR logo and next to his case number. No explanation given. When I tried to talk to a protection officer about him on the phone, she snapped back, “What makes this case so special?”

That was how UNHCR determined refugee status 15 years ago. Beyond the basic indignity of the process for the asylum-seekers, the system had clear gaps in terms of basic fairness. No reasons for rejection given. No right to counsel. All evidence kept secret. No independent appeal. And the bottom line wasn’t pretty either. The UN agency tasked with promoting refugee protection to governments had a higher rate of rejecting asylum seekers than many governments. This was why legal aid activists began trying to build programs to help asylum-seekers trying to work their way through the UNHCR RSD system, and it is why I originally started this website.

Many of these gaps remain, but they are slowly closing. Around a decade ago, UNHCR officials in Geneva began to acknowledge publicly that their RSD operations needed improvement. For the first time in its history, UNHCR published procedural policies governing mandate status determination. Training improved.

Today, more and more UNHCR offices are providing written reasons for rejection. Legal aid is now generally accepted and often encouraged by UNHCR. A few UNHCR offices have experimented with disclosing critical evidence to rejected asylum-seekers to help them prepare their appeals (though technically UNHCR policy still prohibits this).

UNHCR’s recognition rate has risen dramatically, so that UNHCR has become, for asylum-seekers, the most favorable RSD system in the world, at least in overall statistical terms. In human terms, this means tens of thousands of asylum-seekers protected who in the past would have probably been rejected. With near certainty, this means lives saved. It means torture and rape prevented.

Let’s be clear: many problems remain. The gates and reception areas of UNHCR field offices, though generally more organized than what I saw in 1998, are still often scenes of confusion, error, stress, and protest. Some genuine refugees are still refused protection, and while the overall numbers are positive, some UNHCR offices sometimes have problems reaching reliable decisions for certain populations.

UNHCR still maintains an official policy calling for withholding of essential evidence from asylum-seekers, risking error in RSD and setting a bad example to governments. A few UNHCR offices (or perhaps more accurately, a few individual protection officers) continue to resist the right to counsel. UNHCR still lacks an independent appeal system.

Nevertheless, the trend lines are encouraging, and at a time when many government RSD systems are going in the opposite direction (see, e.g., Canada). Which raises the question: What should be the purpose of RSDWatch in the future?

Two continuing purposes for RSDWatch are obvious. First, the RSD reform process is not finished. There will be a continuing need to publicly acknowledge both progress and shortcomings, and to generally keep a spotlight on UNHCR RSD as a critical refugee protection issue. Second, RSDWatch has become a significant resource for researchers and legal aid practitioners, and it continues to be a primary portal for statistics and other information about a topic that affects tens of thousands of lives.

But there can now be a third, and broader purpose. As many a UNHCR official has told me over the years, UNHCR RSD is extremely challenging. Actually, all RSD is challenging, but UNHCR tends to do this work in particularly difficult circumstances. UNHCR RSD is a gateway to protection in places where refugee protection is precarious at best. As a result UNHCR RSD is linked with many other complicated refugee protection challenges that UNHCR and other refugee rights advocates must confront.

In earlier years, and for good reason, we focused narrowly on how UNHCR decides refugee cases. This still matters, and it is still a concern. But doing RSD fairly and accurately is just a starting point. We also need to ask when, where, why and to what end should UNHCR conduct RSD?

Going forward, RSDWatch will continue to be a starting point for anyone interested in how UNHCR decides refugee cases, and it will continue to be a voice for fair procedures. I will also try to add discussion about many of the protection challenges associated with RSD. To name a few: When should UNHCR fill roles that might be turned over to a government? When should refugees be resettled, and when should they not? When does it make sense to grant temporary protection? What is the best way to set up a refugee legal aid center? What if refugees are still in danger of deportation, even if successful in RSD?

And that should be plenty of material to fill this blog for some time to come.

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