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UNHCR’s Bangkok Office Defies the Right to Counsel

February 19, 2013

If you want to know why legal aid groups are sometimes skeptical about whether UNHCR is actually committed to fairness in the way it makes decisions about the lives of refugees, consider its office in Thailand.

As Human Rights Watch reported in September, UNHCR-Bangkok does not permit asylum-seekers to have legal representation in refugee status determination, in violation of UNHCR’s Procedural Standards. This has been going on for a long time, and has been well-known by UNHCR headquarters in Geneva.

HRW quoted refugee advocates in the region:

“Communication between UNHCR in Thailand and local legal service providers is sometimes strained,” said Anoop Sukumaran, coordinator of the Asia Pacific Human Rights Network. “Legal aid providers are not allowed to be present during UNHCR’s RSD procedures and often don’t know what is happening with their clients’ cases.” … UNHCR’s Procedural Standards for Refugee Status Determination under UNHCR’s Mandate state, “The legal representative will have the opportunity to make brief submissions at the end of the RSD interview…and should promote complete and reliable disclosure of the Applicant’s claim.” However, Michael Timmins, Legal Services manager at Asylum Access, told Human Rights Watch, “Legal representatives are not permitted to attend [RSD] interviews with claimants.”

A valid excuse, or bureaucratic deflection?

UNHCR-Thailand offered HRW a peculiar explanation for its violation of refugees’ right to counsel:

In commenting on an earlier draft of this report, UNHCR said, “UNHCR has been informed by the authorities that since UNHCR conducting of RSD is merely tolerated, other entities cannot be allowed in this process.”

It’s worth asking why a UNHCR official asked the Thai government for permission to allow asylum-seekers to have legal assistance in the first place. One might wonder if a UNHCR official, resistant to involving legal aid in RSD, deliberately asked the government in order to get a negative answer.

The reality is that some UNHCR protection officers do not see much value in providing more due process in RSD. They are confident in their ability to make the right decisions, and do not see what the value would be in having a lawyer involved, or a stronger appeal process, or a chance for more scrutiny of the evidence, or — and this is probably be the real point — a chance that someone might find a flaw in their decision-making or interviewing skills.

The real question is why Geneva does not tell its field office to follow the policy. It may be that a reluctant UNHCR official can effectvely deflect pressure from Geneva to comply with a policy by saying, “I wish I could, but the host government won’t let us.” Several years ago UNHCR’s office in Israel gave the same explanation for not allowing legal aid in RSD. This may be a pattern worthy of concern.

No doubt, Thailand is an incredibly difficult country in which to protect refugees. UNHCR’s office in Bangkok has been briefly closed by the government in the past. The government has flagrantly violated the principle of non-refoulement, does not allow UNHCR to access Burmese refugee camps on the border, and prohibits UNHCR from conducting RSD with Burmese, North Koreans, or Lao Hmong.

At the same time, it is not clear why UNHCR is willing to let a host government, no matter how hostile, to compromise the fairness of its RSD procedures. If a government told UNHCR not to apply its Guidelines on Gender-Based Persecution, would UNHCR go along? If a government told UNHCR not to use interpreters in RSD, would UNHCR go along?

Somewhere there should a line that UNHCR will not cross in compromising fairness. The same month that HRW published its report about Thailand, an American appeals court issued a judgment finding that any violation of the right to counsel in a deportation proceeding per se invalidates the deportation order. But obviously UNHCR does not draw the line at the right to counsel.

A decade later …

The violation of the right to counsel is just part of many worrying signs about RSD in Thailand. HRW reports on many of these. UNHCR-Bangkok has a poor record generally on communicating with refugees and asylum-seekers about their cases. And it does not explain its decision-making:

UNHCR’s Procedural Standards further instruct its offices that applicants whose claims are rejected should, wherever possible, be informed in writing of the reasons for the rejections, and specify that “notifications should permit rejected Applicants to make an informed decision about whether an appeal is appropriate and to focus appeal submissions on relevant facts and issues.” Yet, [Michael] Timmins [of Asylum Access], who represents such applicants, said, “There is no available record of the interview questions, rejected applicants receive limited reasons for rejection making it difficult to appeal, and UNHCR will often not disclose to a rejected claimant the evidence used to reject.”

This year is the 10 year anniversary of UNHCR’s Procedural Standards, the agency’s first comprehensive statement of policy about about how it conduces RSD. The recognition of the right to counsel was one of the most important advances in the new policy.

The Standards were issued first internally only, but were released to the public in September 2005. In an internal memo, the Department of International Protection warned field offices “that interested counterparts will start measuring the level of compliance of UNHCR with its own standards.”

That memo was sent in June 2005, and UNHCR-Bangkok is still not in compliance.

  1. David Rhys Jones permalink
    February 19, 2013 8:25 am

    Does the problem lie, to some extent, with UNHCR’s relationship with the Thai government? “While Thailand is not party to the 1951 Refugee Convention, the generosity of the Royal Thai Government in hosting refugees and asylum-seekers has spanned several decades.” UNHCR is not in Thailand as of right and Article 35 ‘supervision’ does not apply. This does not excuse UNHCR’s behaviour but may go some way to explaining it? Thailand’s ‘toleration’ of UNHCR has infected the relationship over many years.

  2. Bahadur permalink
    February 19, 2013 3:32 pm

    Yeah, the all-powerful UNHCR should stand up to the weak and puny Thai government and demand the right to counsel. Even if the Thai government shuts down their office– who cares! It doesn’t matter if they have to wallow in a cesspool of poverty, uncertainty, and police harassment, as long as refugees have a RIGHT to counsel, then all is good with the world.

  3. February 22, 2013 3:27 am

    I agree with Bahadur. If UNHCR were to play it hard they would be shut down, period. You can’t just criticize them without taking into consideration this reality. Do you think if UNHCR had to leave the country refugees would get better protection, seriously?

  4. Greg Kalver permalink
    March 5, 2013 12:20 am

    Seems like, with the lack of access to entire populations, constant incidents of refoulement, and an enormous number of people to look after, UNHCR has other fish to fry rather than spending a lot of time revisiting decisions that already took a long time to make. Yes, asylum-seekers should have legal representation and the right to appeal. They should also have the government – who is, under the convention that Thailand never signed, legally responsible to do so – adjudicating their claims in a transparent and fair manner with full respect for due process. Sadly many operations do not operate in the ideal world of Geneva policy makers. It would be great if there were the resources for full and open hearings on every case, rather than the on-paper deliberations that happen behind closed doors in vastly understaffed operations, but such is not the situation. And it might be noted that this particular complaint, valid as it may be, is unsurprisingly related to Asylum Access’ raison d’etre. In light of some of the very serious issues you have raised, I’m not sure this is actually the most pressing protection issue in Thailand, even if it is your organisation’s.

    • March 5, 2013 12:37 am

      A factual note of clarification: Asylum Access is no longer associated with RSDWatch and was not consulted in the preparation of the blog post to which you are commenting.

  5. Michael Kagan permalink*
    March 5, 2013 1:19 am

    Thanks to all for the comments. A few substantive responses:

    I do not actually suggest that UNHCR confront the Thai government over the right to counsel, but I am skeptical that this is actually a matter of high priority for the Thai Government. If the Thai Government did express resistance, it seems that it might have been addressed simply by clarifying the role of legal representatives in the RSD process. It seems more likely that there are UNHCR staff who resist the right to counsel, and if that is not the case, UNHCR should provide more than one line of explanation about how, why and at whose initiative the government has intervened on this issue.

    I might not be so skeptical if UNHCR-Bangkok had otherwise shown a strong commitment to RSD reform (an area where UNHCR globally has made substantial progress). Remember that UNHCR-Bangkok has also not implemented other procedural safeguards, such as providing cogent written reasons for rejection. But if it is genuinely a case of a host government forcing UNHCR to compromise, I have offered some ideas about how UNHCR might deal with such a situation in my most recent post:

    It is a misperception that Thailand’s failure to ratify the Refugee Convention creates this problem. Some of the very best UNHCR RSD operations are in countries that are also not parties to the Convention.

    Finally, I entirely agree that UNHCR’s role in Thailand is incredibility difficult. But that is actually a very good reason for UNHCR to make its RSD procedures as strong as possible. First, refugee protection depends on it; hundreds of people who say they are in danger of persecution are rejected by UNHCR in Thailand every year through RSD, and thus exposed to considerable risk of detention and deportation. Second, while UNHCR cannot control many actions of the Thai government against refugees, it can control its own RSD procedures.


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