Notice and Comment Comes to the UN: UNHCR Seeks Public Comments on Draft Guidelines on Prima Facie Refugee Recognition
In what may be a first, UNHCR is formally publishing draft guidelines and seeking public comments on them. UNHCR should be applauded for this process. Let us hope that it becomes the routine. (UNHCR is calling it a trial.)
UNHCR has in the past been criticized for issuing new guidelines without extensive consultation, which are then subject to critique (see here for an example from earlier this year). Sometimes the criticisms could have been addressed through fairly minimal revisions, but the tendency for UNHCR to publish final documents and get criticized later was generally counter-productive. Concerned members of the public felt blindsided and left out of the process. Meanwhile, even if UNHCR staff found merit in some critiques, it is typically much harder for an agency to retract a final document than to revise a draft.
To be clear, UNHCR has in the past circulated drafts formally and informally, but usually only to selected organizations and often only on condition that they keep the process confidential. UNHCR now appears to be adopting a more public Notice and Comment system, modeled on the well-established mechanisms administrative agencies use in democratic countries to solicit comments on proposed rules and regulations before they are finalized. This is a great step.
The proposed guidelines concern prima facie recognition of refugee status. This is a critical issue. But I will withhold comment on the draft guidelines – which for the record, I have yet to read. I plan to submit my comments through the new UNHCR comment process, and I encourage other people with views on the subject to do the same. But no matter what I or anyone else may have to say about the draft, UNHCR should be applauded for the process.
The deadline for comments in November 11. The draft guidelines and instructions on how to comment are here.
In an interview with The Daily Star newspaper, UNHCR’s Representative to Lebanon Ninette Kelley said that UNHCR has “removed” refugee status from 68,000 Syrians over the past five months.
According to the article, some of these cases involve people who have failed to contact the UNHCR office after a period of time, which not not especially objectionable. But UNHCR also removed refugee status from some people because they were “deemed not to be in need of protection any longer, after a routine interview conducted annually prior to renewing refugee documents,” according to the newspaper.
The article includes a long quote from Kelley purporting to explain this, but it raises as many questions as it answers. Here is the full quote:
“We have looked at those names and tried to determine what number of those names, because there are a lot of names, also matches our database, and then we have called people in … to interview them and find out the reasons for their going back. And we have deregistered people for whom their going back to Syria has shown that they aren’t in need of international protection or assistance, and that’s something that we have done willingly with the government, recognizing that refugee status is for persons who have a well-founded fear of persecution and are fleeing civil unrest inside Syria.”
It would be productive for UNHCR to issue a statement clarifying the procedures it uses to “deregister” refugees. For a person who remains in contact with UNHCR, there are really only three ways for refugee status to be ended legitimately. None of them are routine.
One is cancellation, which is used when a person is found to have committed fraud in applying for refugee status. Such an allegation obviously requires giving the accused person the right to defend himself.
Another is cessation. There are several potential grounds for cessation, but the one that might be applicable to the situation Kelley is describing is where a refugee “has voluntarily re-established himself in the country which he left.” But this is not a legally simple matter, because it requires evidence that a person has “re-established himself,” not merely re-entered the country. Brief visits to collect assets or to bring aid to family members might not meet this test.
The final legitimate means of refugee de-registration is full fledged individualized refugee status determination. This may be called for if UNHCR wants to end refugee status for someone who was recognized presumptively on a prima facie basis. In this situation, the person has never actually had a full chance to have her refugee claim adjudicated, and has a right to have that opportunity before refugee recognition is stripped away.
All of this is to say that there are legitimate reasons why UNHCR may deregister a refugee, but all of them would be complicated, and would require a full range of procedural safeguards, starting with full notice of what is at issue and what is at stake, and the chance to prepare a response. It is difficult to imagine that the entire procedure could be conducted fairly in a single interview where the person thinks he is going to the UNHCR office simply to renew documents, which is what the article suggests is happening.
The Daily Star report raises alarm bells because historically there has been a problem with UNHCR offices being far too casual in taking refugee status away from people. Years ago, I had several clients who had been summoned to a UNHCR office because they were told UNHCR needed to collect some routine information, and they walked out of the office having had their blue cards seized. I would like to think that UNHCR no longer does that sort of thing.
I realize that Kelley was trying to summarize a complicated situation for the media, and so it is possible that UNHCR is doing all of this properly. But it is also clear from the article that Kelley is highly sensitive to pressure from the Lebanese Government, which has partially closed its borders to new Syrian arrivals. (Depending on how it is administered with asylum-seekers, the border closure may be illegal under international law, but it is politically more complicated for UNHCR because Lebanon has undeniably borne an absurdly disproportionate burden in terms of hosting Syrian refugees.)
This environment certainly makes it plausible that UNHCR feels some pressure to trim its registration rolls. Kelley’s statement that UNHCR is doing this “willingly with the government” could give refugees reason to worry about whether their cases will be adjudicated fairly. Given that there is no judicial review available to these people, it would be beneficial for UNHCR to explain publicly the procedures that it has used in these cases and how it is protecting the refugees’ due process rights.
UPDATE: Concerns that the Lebanese government is pressuring UNHCR to turn refugees away seem to be explicitly confirmed here.
Over the weekend, as many as 700 human beings died at sea in the Mediterranean, trying desperately to reach Europe, including 500 on a boat that departed from Egypt. A UNHCR spokesperson quoted in The Guardian called it “without any doubt the deadliest weekend ever in the Mediterranean.”
The weekend death toll may have equaled the entire tally for 2013, when 700 migrants died trying to reach Europe all year. Nine months into this year, the toll has already reached about 2900.
This awful, pointless tally of the dead stands first and foremost as an indictment of the supposedly civilized democracies that have turned themselves into fortresses, walled off against the arrival of unarmed, hopeful people who are underserving mainly because they made the bad choice to be born with a less advantageous citizenship. These deaths were in the Eastern Mediterranean, but they just as easily could have been in Texas or off the coast of Australia. In the interest of human civilization, one has to hope that our grandchildren will look back on these human losses and shake their heads in shame at the callousness of their ancestors.
As a secondary matter, it is relevant to note that Egypt has long been one of UNHCR’s largest refugee status determination operations (it was the fourth largest in 2013). The boat from Egypt included a mix of Sudanese, Syrians, Palestinians and other nationalities, along with some Egyptians. It’s reasonable to speculate that a good many of them were refugees, and some may even have been applying to or already recognized as refugees by UNHCR-Cairo. That’s hardly surprising. Refugees and asylum-seekers in Egypt have been smuggling themselves to Europe and Israel for years, some without trying to seek refuge in Cairo, and some after despairing of their prospects there.
The existence of a UNHCR RSD operation provides a measure of bureaucratic order to refugee policy in countries like Egypt. It means it is possible to inquire about a person’s status — asylum-seeker, refugee, rejected asylum-seeker, etc. It means there is paperwork and some documentation, and an office with people trying to make things better. But it does not mean that there is real protection available whatever paperwork one manages to get. And that is why refugees who have already escaped from other places take such risks to move again, in a doomed search for asylum that so few actually find.
The number of people applying to UNHCR for individual refugee status determination grew by 115,276 from 2011 to 2013. That’s a huge increase – 144 percent to be exact. But where is this happening, and who is submitting these applications?
The answer to these questions reveals a lot about the role that RSD plays in international refugee policy. The top three refugee populations worldwide in 2013 were Afghans, Syrians (whose numbers passed the 3 million mark in late August), and Somalis. But while these nationalities do apply to UNHCR RSD in significant numbers, they are not primarily responsible for the big upsurge in UNHCR RSD.
This is because only a small fraction of these large refugee populations go through individualized RSD. It would be impossible to adjudicate so many, so group-based status recognition fills the gap. For example, Lebanon hosted close to a million Syrian refugees by the end of 2013, but UNHCR’s statistical reports list just 547 having submitted individual RSD applications. The others probably weren’t allowed to apply, or would have had nothing to gain.
So, where is the surge happening, and who is applying? Nearly half of the increase in UNHCR RSD is attributable to just two groups: Myanmarese in Malaysia and Iraqis in Turkey.
|2013 Applications||Growth Since 2011||Percent of total growth|
|Myanmarese in Malaysia||50,330||36,629||32%|
|Iraqis in Turkey||25,280||17,368||15%|
Although UNHCR RSD takes place in around 60 countries, 20 of those offices received fewer than 100 applications a year, while only 20 received more than 1000. UNHCR RSD is spread across multiple continents (especially Africa, the Middle East and Asia). But it is also quite concentrated in a relatively short list of offices. Malaysia and Turkey accounted for half of all RSD applications to UNHCR last year. The top 10 offices combined accounted for 85 percent.
UNHCR’s Top 20 RSD Offices (by number of applicants)
|Country||2013 Applicants||Increase since 2011|
|Hong Kong SAR, China||1,676||886|
|Syrian Arab Rep.||1,193||-1,553|
Because significant UNHCR RSD operations occur in regions so far apart, no single refugee crisis accounts for the UNHCR RSD surge. Instead, UNHCR conducts RSD in many countries that are positioned to receive asylum-seekers from multiple trouble spots. Consider the number of countries in the Middle East on the UNHCR RSD list. These countries today are receiving Syrians and Iraqis. But before war tore apart either of those countries, these same UNHCR offices were processing large numbers of cases from Iran, the Horn of Africa, and even Central Asia. In addition to Iraqis, UNHCR-Turkey received 8726 Afghan applicants and 5897 Iranians in 2013.
No single refugee crisis accounts for the UNHCR RSD surge. Instead, UNHCR conducts RSD in many countries that are positioned to receive asylum-seekers from multiple trouble spots.
Other major RSD applicant groups around the world included Afghans in Pakistan (5087 applicants) and Indonesia (3392), Ethiopians in Yemen (4113), Iraqis in Jordan (4045), Sudanese in Egypt (5317), and Myanmarese in India (3362).
The surge in applications puts considerable strain on UNHCR offices, and on asylum-seekers who may face longer waits to have their cases decided. These stresses are likely to heighten the inherent tension between efficiency and fairness in RSD, a basic quantity v. quality dilemma that impacts nearly all RSD systems at some level. In coming posts, I will look more closely at what the statistical data can tell us about this strain, and about how UNHCR actually decides refugee cases.
The number of people applying for individual refugee status determination at UNHCR offices around the world surged in 2013, with UNHCR receiving RSD applications for 195,376 people. I have data on UNHCR RSD going back to 1998, and the number of applicants had never approached this level before during that period. In previous years the number had hovered around 100,000, and had dipped below 50,000 in 2002.
The number of applicants climbed in 2012 as well, to 110,698, up from 98,800 in 2011.In my next statistics post, I will report on where this surge is happening. But let me here just try to capture the global scale of what is happening.
With this surge, UNHCR is once again the world’s largest RSD adjudicator, exceeding Germany, the United States and South Africa in new applications. UNHCR now handles more than 20 percent of all individual RSD applications worldwide, compared to 11 percent in 2011.
NB: In UNHCR’s Global Trends 2013 report, in Chapter VI, slightly higher figures are given for applications to UNHCR RSD, and a slightly lower percentage is given for UNHCR’s share of all RSD. The reason for this appears to be that UNHCR includes both appeals and first instance applications, which produces slightly different figures. For more explanation about this, see my caveats post.
The UNHCR report states, “With 109,600 new asylum applications registered during 2013, Germany was for the first time since 1999 the world’s largest single recipient of new asylum claims.” This seems to conflict with my statement that UNHCR is the world’s largest RSD adjudicator, but there is in fact no substantive disagreement. Rather, this is a confusion of terminology. UNHCR is correct in the sense that there were more individual RSD applications in Germany than in any other country. But UNHCR globally (all offices combined) received more applications than Germany did, so that UNHCR was the world’s largest RSD adjudicator.
By analogy, McDonald’s is the largest restaurant chain in the United States. But no single McDonald’s branch is the largest restaurant in the US. For purposes of this explanatory note, I have indeed analogized UNHCR to McDonalds. Let me apologize to UNHCR for any offense taken, and state clearly that I hold UNHCR in much higher regard. Nevertheless, if you are into trivia and want to know about the largest restaurants in the US and the world, click here.
Over the next few weeks I will provide statistical data and analysis about UNHCR RSD in 2012 and 2013. But before we get to that, let me provide some general notes of caution about the data.
The data I will be presenting come from two UNHCR reports, the 2012 Statistical Yearbook and Global Trends 2013 (the data I use are are in the statistical annexes, which you can download here). These are the best reports we have about what is going on in RSD globally, both with governments and UNHCR. I take the data and re-analyze it so as to produce a clearer picture about UNHCR RSD.
But the data isn’t perfect. For starters, UNHCR gets government RSD data mainly from governments themselves, and they might make a mistake or two. Second, even assuming there are no basic errors in the data, there’s no standard agreement on how to categorize the data. Even UNHCR offices are inconsistent. And this creates some messiness.
Person v. Cases
One of the things I am most interested in is how many people apply to individual RSD systems. But getting this number is not as simple as it seems. For one, there is a difference between reporting the number of persons who apply versus reporting the number of cases, since a single case could include multiple family members. UNHCR has improved its reports by listing whether the data from a certain country is reporting persons or cases. But that simply makes the inconsistency more transparent.
Most UNHCR offices report persons, but one (South Sudan) reports cases. Now, South Sudan is a very small RSD operation, so this does not throw things off too much. But there are a number of governments that report cases, not persons. If we knew with confidence the average number of persons per case in each country, we could correct for this. But I don’t know that data, and my intuition is that it is likely to vary according to differing migration patters and different RSD systems. The nut of this is that the aggregate government RSD data is likely an under-count, but I can’t say by how much.
New Applications v. Appeals
Another problem is that RSD systems typically have first instance and appeal levels (they should, anyway). But if we want to look at recognition rates or the number of new applications, we don’t want these mixed together. Unfortunately, a lot of governments and UNHCR offices do mix them together. This means that for some large UNHCR RSD offices (including Egypt, Jordan, and Pakistan), the data includes both first instance and appeals cases. This is also true for some governments, such as Austria, Burundi, Ecuador, Israel, and Montenegro, among others.
This presents me with two unappealing choices. I could exclude these countries from the data, but then we would be completely ignoring some very significant RSD systems. Or, I could include them, knowing that I am in effect double counting applications (i.e when a person appeals, they will be counted twice). I have chosen the latter, since I would rather over-count something important than ignore it. But understand that this is an error either way.
Oh, the USA
Let’s just agree that the data reported for the United States is rough. It includes both an over-count (or two) and an under-count. We could assume that they cancel each other out, but you know what folks say about assumptions (and they would be right).
A person can start an asylum application in the United States either through the Asylum Office or in Immigration Court, which is part of the Executive Office of Immigration Review (EOIR). But if they start at the Asylum Office and lose they are usually referred to the Immigration Court, where they can start their application again. But some people start their asylum cases in Immigration Court, skipping the Asylum Office part.
UNHCR reports two lines of data for the United States. One is for the Asylum Office, and the other for EOIR. But the EOIR data will naturally include both brand new applications, as well as people referred by the Asylum Office — creating an over-count.
Also, decisions by the Immigration Court can be appealed to the Board of Immigration Appeals, which is also part of EOIR. Thus, the EOIR data in UNHCR’s report might include appeals to the Board of Immigration Appeals; it is not clear if it does. So, that’s an additional possible over-count.
To make this even messier, the data from the EOIR is for persons, but for the Asylum Office it’s cases. Thus, we have an undercount.
What good are messy statistics?
In my opinion, it’s better to have a messy, somewhat distorted picture of what is happening in RSD than to leave it completely in a black box. But it is essential to know that the data is messy, and that what we are getting it is a rough snapshot only. It’s a bit like the famous map of the London Tube. It’s not to scale, and it is distorted in certain ways. But it’s still extremely useful in portraying the entire system in one comprehensible image, and it can get you where you want to go. I’m hoping for something similar with the data I am about to report, but it is essential that everyone understand what we are looking at here. It’s not perfect, but it’s the best we have.
When I worked in Egypt, where UNHCR RSD was a major focus of our legal aid program, a refugee told us, “The blue card is not enough.” This haunted me, because a blue card (which includes a non-work residence permit) was all we could get refugees through refugee status determination.
“The blue card is not enough” is an indictment of the longstanding tendency for the field of refugee law to focus on just two things: the refugee definition and its application (a.k.a. RSD), and the principle of non-refoulement. But in too many places, everything else refugees need to rebuild their lives has been forgotten in practice.
This may be slowly changing, and Asylum Access has just published an important new report moving in this direction, about refugees’ right to work. Based on a survey of NGOs and in depth country profiles, it finds a wide range of legal, bureaucratic and practical obstacles preventing refugees from realizing their economic potential.