This article by Michael Kagan has been lightly edited and reprinted from RSDwatch, an independent source of information about the way UNHCR decides refugee cases.
In February UNHCR published new Guidelines on Temporary Protection or Stay Arrangements (TPSA), a document that is obscure where it should be clear, explicit and broad where it should be narrow and conditional. It has the potential to make refugees’ lives worse.
Temporary protection, and its close cousin, prima facie recognition of refugee status, has a long history but also urgent current importance (see, e.g., Syria). These are essential mechanisms to provide immediate status to refugees in crises. But they are also useful for governments that want to avoid full protection of refugee rights. Because of this double-edged sword, UNHCR could do much good by laying down clear guidelines. But it has probably made matters worse.
‘Temporary protection’ is a badly abused term in refugee policy, used to refer to a wide range of very different things. Sometimes it is used to refer to protection of groups above and beyond the international definition of a refugee (example: USA). At the other extreme it is used by governments to re-label confinement and detention of refugees and to defer their access to a stronger status (example: Israel). UNHCR offices have also used temporary protection to freeze cases by nationality (example: Sudanese in Egypt), cutting refugees off from access to resettlement and sometimes social welfare assistance.
UNHCR’s new Guidelines seem to pursue a reasonable goal: ‘TPSA’s are complementary to the international refugee protection regime, being used at times to fill gaps in that regime as well as in national response systems and capacity, especially in non-Convention States.’ But the rest of the Guidelines do not back this up. They are not limited to non-Convention States. And there is a vast difference between gaps in the international refugee protection regime – say, for people fleeing natural disasters – and a government that simply wants to escape from its obligations to refugees by denying them access to asylum.
UNHCR provides four criteria that should bring temporary protection to an end. None of them include a set period of time, nor a right for the individual to ask to have her case assessed against legal criteria for a better status, nor a condition that if it should become practical to conduct individual determinations fairly a government should do so.
Instead, UNHCR offers this: ‘Although the determination of an exact duration for a TPSA may not always be possible because of the complex fluid nature of the movements and their root causes, States may agree to set timeframes, to be extended as conditions persist.’
I’m not sure what that means, except that UNHCR seems to accept that ‘temporary’ might sometimes go on indefinitely, because that’s how long the root causes of forced migration sometimes persist.
Since people might be stuck in ‘temporary’ protection effectively forever, it makes a great deal of difference what rights they will have. Temporary protection should not be used where it would deny refugees the rights to which they are entitled under law. UNHCR seems to agree with this premise, but also seems to have put in remarkable effort to obscure it. In order to understand that this is in fact UNHCR’s position, I had to look at the eighth and ninth bullet points under paragraph 8, then follow footnotes 3, 5 and 6, and then I had to have background knowledge about the documents referred to therein.
I’m still not completely sure I have understood UNHCR correctly, though I hope so. And even if I am right, I’m not sure deputy assistant ministers of interior and overstretched administrative judges will necessarily understand this.
So, what rights will someone with temporary protection enjoy? The best part of the Guidelines may be that it does clearly call for freedom of movement, in contrast with the various forms of detention and forced encampment employed by many governments. Among other things, UNHCR calls for protection from arbitrary or prolonged detention, a ‘designated period’ of authorized stay (though UNHCR again doesn’t say how long), and ‘self-sufficiency or work opportunities.’
It is a puzzle why UNHCR cannot call for a more concrete timeline for social and economic rights, because there is one readily available in the Convention that UNHCR is mandated to safeguard. To cite just one example, according to the Refugee Convention a refugee should be able to seek wage-earning employment after three years. For some reason, UNHCR cannot bring itself to call explicitly for the right to work, which is much more substantial — and less vulnerable to exploitation — than ‘work opportunities.’ Even prisons offer ‘work opportunities.’
Where UNHCR seems willing and able to speak with clarity, the specifics are worrying. According to the Guidelines, temporary protection is a good response to ’complex or mixed cross-border population movements, including boat arrivals and rescue at sea scenarios.’
Why can’t individual refugee status determination be used in such situations? Boat arrivals don’t necessarily mean large numbers. If governments worry that a migration is ‘mixed’ (meaning it includes both refugees and non-refugees), the logical response should be to examine the individual cases. The problem is that governments sometimes don’t want to do this, because they might have to acknowledge that some of the arrivals are actually refugees.
Let me dwell for a moment on the idea that boat arrivals merit diversion to temporary protection. Since when does a refugee’s rights under international law depend on her mode of transport? Why should a state be able to divert an asylum-seeker to temporary protection just because she chose to take a boat rather than a bus? This is the Paul Revere doctrine of international refugee law. There is one legal regime if they arrive by land, and something else if by sea. This is music to Australia’s ears, I’m sure, but I’m not sure how it makes sense as a matter of law.
[NB: I’m not sure where air travel falls here. Is an airplane a ‘ship,’ analogous to a boat, as in maritime law, or is there something specific about water? And about water, is the ocean the same as a river? And if arrival by sea justifies temporary protection, how will we know when temporary protection can end? So long as the sea remains full of water, does the root cause persist? I could go on…]
These are not the kind of Guidelines that can stand up to any rigorous analysis. A sophisticated court might be able to see this. But not all judges will, and may look to UNHCR to signal whether certain policies are legitimate. Regrettably, UNHCR has provided considerable fodder for recalcitrant governments to cite when they want to marginalize uninvited asylum-seekers.
It is not usually UNHCR’s fault that refugees are left in limbo for years on end in ‘protracted refugee situations’. But it is UNHCR’s job to remind the world how shameful this is, and how painful for the people affected. It is UNHCR’s job to remind governments of the norms they have signed up to, which if applied would do a great deal to mitigate this pain. If UNHCR obscures these norms, or legitimizes the means by which governments slide out of them, then UNHCR is not doing its job, and it might actually be making life worse for refugees.
So, let’s please agree to call these Guidelines a rough draft. I’m sure the intentions were good. But please revise.