Fahamu Refugee Legal Aid Newsletter

The Fahamu Refugee Legal Aid Newsletter is a monthly publication that focuses on the provision of refugee legal aid. It is aimed primarily to be a resource for legal aid providers in the Global South where law journals and other resources are hard to access. It complements the information portal
http://www.refugeelegalaidinformation.org
The newsletter follows recent developments in the interpretation of refugee law; case law precedents from different constituencies; reports and helpful resources for refugee legal aid providers; and stories of struggle and success in refugee legal aid work.

APRIL 2014

a monthly forum for news and discussion on refugee legal aid

Issue 47, April 2014        

ISSN 2049-2650

Editorial Team: Lily Parrott, Fiona McKinnon, Jennie Corbett, Alice Crocker, Minna Persson, Katherine Rehberg, Mandy Jam, Clare Bakhtiar, and Andrea Aylard.

Supervising Editor: Themba Lewis

Web links are in blue.

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In this issue:

STOP PRESS: Kenya again orders all refugees to be interned in camps

News on Countries of Origin

News on Countries of Asylum

Detention and Deportation News

Announcement: Hong Kong refugee advice centre

Conferences and workshops

Courses

Vacancies

Requests

Publications

CASE NOTES AND SHORT PIECES

Case note: Shahzad (Art 8: legitimate aim) Pakistan [2014] UKUT 85 (IAC)

Case note: UK Supreme Court rules that ‘substantial countervailing reasons’ are required to reject asylum applicants already granted refugee status by UNHCR

Case note: QH (Christians - risk) (China) CG [2014] UKUT 86 (IAC) (14 March 2014)

Case note: RQ (Jordan) v SSHD [2014] EWHC 559 (Admin)

UK Supreme Court decides on third country returns

UNHCR issues new Guidelines on Temporary Protection: They need a rewrite

An overview of current situation for asylum-seekers in Israel

An interview with Barbara Harrell-Bond

ARTICLES

Psychology & refugee status determination: Psychological evidence to help inform refugee status determination

An experience of failure: a case study of UNHCR’s recommendation to invoke the cessation clause for Rwandan refugees

FGM and asylum: AF vs Secretary of State 31 January 2014

Comments

STOP PRESS: Kenya again orders all refugees to be interned in camps

After a significant legal challenge and a high court ruling against previous efforts to restrict all refugees in Kenya to two camps in the north of the country, the Kenyan government has again announced its intention to follow through and force the country’s refugee population into Dadaab and Kakuma camps. Human Rights Watch responds here.

Comments

News on Countries of Origin

Global


UN ranks Syria, Russia and Afghanistan top sources for asylum seekers

Africa


 

BURUNDI: Burundi on the brink: Is Nkurunziza tightening his grip ahead of 2015 elections?


CENTRAL AFRICAN REPUBLIC:


DEMOCRATIC REPUBLIC OF THE CONGO: DRC looks to follow in Uganda’s footsteps with anti-gay bill


ERITREA: New research on forced National Service


ETHIOPIA:

Ethiopia uses foreign kit to spy on opponents says Human Rights Watch; Incarcerated Ethiopian journalist, Reeyot Alemu, spends 1000th day in prison


KENYA: Anti-gay groups in campaign to ‘prevent sodom’


LIBYA: Political killings still plaguing post-Qaddafi Libya


NIGERIA:


SOUTH AFRICA: With an election looming, Home Affairs plays the ‘blame the foreigners’ game


SOUTH SUDAN:

As South Sudan crisis deepens UNHCR warns donors that refugee numbers in surrounding region will rise


SUDAN:


UGANDA: Ten activists challenge anti-homosexuality law


WESTERN SAHARA: Situation of Saharawi refugees ‘desperate’, says Mr. Koloko; Visit flights between separated Saharawi families resume next April, says UNHCR

Americas


COLOMBIA: Disappearances plague major port Buenaventura

VENEZUELA: Venezuela jails opposition leader Leopoldo López

Asia-Pacific


MYANMAR: Clinic calls on Myanmar military to reform policies to prevent unlawful attacks on civilians; Ban on doctors’ group imperils Muslim minority in Myanmar

Europe


Parliament backs EU-Turkey deal to return clandestine migrants

Middle East


IRAN: Number of executions rising in Iran


PALESTINE: Israeli raid leaves 3 dead in West Bank refugee area

Comments

News on Countries of Asylum

Africa


CAMEROON:


CHAD:

Darfur refugees have ‘no source of income to buy food or medicines’; Over 76,000 people displaced from Central African Republic into Chad facing crisis; Skilled Central African workers, students and professionals find Shelter in Chad


EGYPT: ‘It’s not a place you go to die, but a place you go to suffer’: Torture and trafficking in Sinai


THE GAMBIA: Gambia currently hosts about 12,000 refugees discloses Commissioner Mendy; WCR and KMC Local Authorities exposed to refugee laws


KENYA:


LIBERIA:


MALAWI: Fleeing fighting in Mozambique to uncertain future in Malawi


RWANDA: New Rwanda site is a pilot for refugee camp planning and design; Contingency planning for massive refugee influx


SOUTH SUDAN: Sudanese refugees attacked in South Sudan’s Upper Nile State; Sudanese refugees attacked in Blue Nile State


TUNISIA: IARLJ commends Tunisia’s commitment in favour of rights of refugees in Africa


UGANDA:

Americas


CANADA: Losing your right to remain in Canada: Cessation


USA: Congress cries wolf on asylum fraud; Otay protest targets immigration policy; Supreme Court rejects asylum bid for German home-schooling family

Asia-Pacific


AUSTRALIA:

JAPAN: Only six asylum seekers accepted by Japan in 2013

PAPUA NEW GUINEA:

THAILAND:

Another group of Uyghur asylum seekers held in Thailand; For Myanmar Rohingya there is no escape from brutality

Europe

Asylum seekers in Europe reach two-decade high


IRELAND: Government urged to end direct provision of hostel accommodation for asylum seekers


MALTA: 84% of asylum seekers granted status in 2013


SWEDEN: Sweden leads EU in asylum-seeker approvals; Sweden demands EU shares out asylum seekers burden


UK:

First Syrians reach UK in refugee resettlement scheme; Jimmy Mubenga: Three G4s guards to be charged with manslaughter; Impact of immigrants on British workers ‘negligible’

Middle East

ISRAEL: Overview of current situation of asylum seekers in Israel


JORDAN: Inside Zaatari refugee camp in Jordan three years after the Syrian uprising began; Jordan’s ‘forgotten’ urban refugees from Syria


YEMEN: More than 40 missing and feared drowned in latest Gulf of Aden boat tragedy

Comments

Detention and Deportation News

EGYPT: Egypt continues to imprison members of the Muslim Brotherhood and supporters of Mohamed Morsi as well as campaigners who have advocated against the proposed constitutional referendum, liberal activists and journalists. 40 deaths of prisoners have been reported since July 2013.


ISRAEL: African migrants face ‘voluntary’ return or detention

KENYA: Despite increased pressure to repatriate, fewer than one in a hundred Somali refugees living in Dadaab refugee camp in northern Kenya are interested in returning home.


SAUDI ARABIA: Mass expulsions are putting Somalis in danger


SOUTH AFRICA: Ugandan gay rights activist avoids deportation from South Africa, providing an example of a successful anti-deportation campaign.


UK:

Comments

Announcement: Hong Kong refugee advice centre

The Hong Kong Refugee Advice Centre announces the organisation’s new name: Justice Centre Hong Kong, along with a new website (still under construction). Aiming to adapt to the changing political landscape surrounding refugee protection in Hong Kong, and the commencement of the Hong Kong government-led Unified Screening Mechanism (USM), the organisation will continue its mission to protect the rights of Hong Kong’s most vulnerable forced migrants, including survivors of modern slavery.

Comments

Conferences and workshops

The 2014 UNHCR Annual Consultations with NGOs will take place on 17-19 June in Geneva under the theme Women’s Leadership and Participation. Registration via an online form is open until 16 May. The username is ‘ngos’; the password is ‘consult’. Fahamu Refugee programme has reserved a small number of shared dormitory rooms which will be allocated to participating delegates on a first come first served basis. If you are interested, please contact Adrian Henderson.


Revisiting Ethics and Ideology in Situations of Conflict: the Training and Research Group on Public Service Translation and Interpreting of the University of Alcalá, Madrid, present their fifth annual international conference to be held at the University of Alcalá, on 3-4 April.


Access to Asylum: Current Challenges and Future Directions: the Faculty of Law, Monash University, Australia, will hold this conference at the Monash University Prato Centre, Italy, on 29-30 May. The conference will discuss a variety of issues, including: access to asylum; interpretation of the Refugee Convention and human rights protection; state responsibilities and burden sharing; Refugee Status Determination (RSD) procedures; border controls at sea; Frontex and interdiction; and the externalisation and privatisation of borders.

 

'Boat refugees’ and migrants at sea: A comprehensive approach integrating maritime security with human rights: the Refugee Law Initiative, University of London, and the Department of Law at Queen Mary University of London present this conference at Senate House in London on 23-24 June. It aims to comprehensively address the contemporary phenomenon of ‘boat migration’ with a holistic approach, with a view to making a decisive contribution to understanding current trends. Please send an email for more information.

Comments

Courses

Refugee Rights Leadership Training: in collaboration with the University of York, Asylum Access will hold this training in Geneva on 13–15 June. The three days of interactive workshops will focus on rights-based programming; new developments in refugee legal aid; advocacy campaigns planning; and the continued relevance of the Nairobi Code. Click here to fill out the online application before 21 April.

Summer School on European Union Law and Policy on Immigration and Asylum: the fourteenth edition of the Odysseus Network’s Summer School will be held 30 June-11 July at the Université Libre de Bruxelles, Belgium. This course aims to provide participants with a comprehensive understanding of the immigration and asylum policy of the European Union from a legal point of view. Please click here for more information and to apply.   

International Summer School in Forced Migration: the Refugee Studies Centre, University of Oxford, will organise its annual summer course at the University of Oxford, 7-25 July. Unique in its participatory method of critical learning, the course will offer intensive interdisciplinary reflection. Please see the course announcement for detailed information about the programme structure, entry requirements and application instructions. For all enquiries, contact Heidi El-Megrisi. The closing date for applications is 1 May.


Applied Research Methods with Hidden, Marginal and Excluded Populations: on 21-25 July the School in Social Science Data Analysis, University of Essex, will provide an intensive introduction to mixed research methods –both qualitative and quantitative– suitable for conducting research with marginal, hidden and excluded populations. A detailed course description can be found here. For enquiries, please contact Melanie Sawers.


European Law on Immigration and Asylum: the Odysseus Network’s one-year certificate programme will begin on 5 September in Brussels. This programme aims to provide participants with an in-depth understanding of the legal rules on immigration and asylum adopted by the European Union. The courses will also have a comparative dimension and cover the internal laws of the Member States, in particular the way they transpose EU directives. The application deadline is 8 August.

Comments

Vacancies

Asylum Access seeks to recruit a Launch Director to oversee the initial phase of the organisation’s expansion of operations into Malaysia. A full job description is available here. CVs and letters of interest should be sent to Niki Fitzgerald.


Asylum Welcome, Oxford, is looking for a dynamic and highly skilled Coordinator to train and support volunteers to run the Adult Advice Services, to support casework and visits to Campsfield House detention centre, as well as to manage telephone advice. Those interested should consult the  job description and application form. The closing date for applications is 7 April.


The Human Security Policy Studies Centre and Caritas Mongolia are looking to hire a short-term international human trafficking expert to train Mongolian police investigators from May-June 2014. As a country in political and socio-economic transition, Mongolia is confronted with the growing problem of human trafficking within the country and across state borders. Applications will be accepted until 21 April. For enquiries, please contact Ms. G. Zoljargalan.


Medical Justice seeks to recruit a full-time Research & Policy Worker. The purpose of the position is to produce research from medical and related evidence demonstrating the impact of immigration detention on detainees and the extent of poor medical treatment and harm caused to detainees; and to undertake policy work to effect lasting change. For detailed information, please see the job description. Applicants are invited to complete the application form. For enquiries, please send an e-mail. The closing date for applications is 22 April.


Medical Justice seeks to recruit a full-time Caseworker to ensure that Medical Justice assists detainees as well as possible to access adequate health care and obtain high quality independent medical evidence to progress their legal case. For detailed information and to access the application package, please visit their website. For enquiries, applicants are advised to send an e-mail. The closing date for applications is 22 April.

Comments

Case note: Shahzad (Art 8: legitimate aim) Pakistan [2014] UKUT 85 (IAC)

The full case proceedings can be found here.


(i)   Failure on the part of the Secretary of State to identify in her decision any legitimate aim under Article 8(2) of the ECHR does not prevent a court or tribunal from seeking to do so on the basis of the materials before it.


(ii)  ‘Maintenance of effective immigration control’ whilst not as such a legitimate aim under Article 8(2) of the ECHR can normally be assumed to be either an aspect of ‘prevention of disorder or crime’ or an aspect of ‘economic well-being of the country’ or both.


(iii)   ‘[P]revention of disorder or crime’ is normally a legitimate aim both in expulsion cases where there has been criminal conduct on the part of the claimant and in expulsion cases where there have only been breaches of immigration law.


(iv) MF (Nigeria) [2013] EWCA Civ 1192 held that the new immigration rules regarding deportation of a foreign criminal are a complete code. This was because of the express requirement in them at paragraph 398 to have regard to exceptional circumstances and other factors.


(v)   It follows from this that any other rule which has a similar provision will also constitute a complete code;


(vi) Where an area of the rules does not have such an express mechanism, the approach in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) ([29]-[31] in particular) and Gulshan (Article 8 - new Rules - correct approach) [2013] UKUT 640 (IAC) should be followed: i.e. after applying the requirements of the rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them.


117. To conclude: The First-tier Tribunal erred in law and its decision is set aside.


The decision we re-make is to dismiss the appeal on all grounds.

Comments

Case note: UK Supreme Court rules that ‘substantial countervailing reasons’ are required to reject asylum applicants already granted refugee status by UNHCR

Reprinted from the European Database of Asylum Law (EDAL) website. Read the judgment and official press summary of the UK Supreme Court.


The Appellant, an Iranian national, was granted refugee status by UNHCR in Iraqi Kurdistan on the basis of feared persecution as a member of the Kurdistan Democratic Party of Iran (KDPI). He subsequently moved to Turkey and was again recognised as a refugee by UNHCR. After three years in Turkey, the Appellant sought asylum in the UK. His application was refused at first instance due to a perceived lack of credibility: inconsistencies in his own evidence and between his account and that of a colleague in KDPI. On appeal, the immigration judge regarded UNHCR’s prior granting of refugee status as significant, notwithstanding the absence of evidence motivating the grant, but in this case rebuttable by the Appellant’s failure to establish his involvement with KDPI or the Iranian authorities’ interest in him. Prior to the appeal being considered by the UK Supreme Court, UNHCR disclosed documents supportive of the Appellant’s account and credibility.


The Supreme Court unanimously dismissed the appeal, holding that the judge had been entitled to depart from UNHCR’s granting of refugee status. What is required of decision makers is ‘close attention’ to prior grants of refugee status by UNHCR, and ‘considerable pause’ before taking a different view [49]. This is due to the ‘accumulated and unrivalled expertise’ [44] of UNHCR and the relative proximity in time of UNHCR’s decision to the relevant circumstances of the asylum claim [48]. ‘Recognition of refugee status by UNHCR does not create a presumption, does not shift the burden of proof and is not a starting point… but substantial countervailing reasons are required to justify a different conclusion’ [49].


In this case, the Supreme Court ruled that sufficient weight to UNHCR’s decision had been given by the judge, who was entitled to question the Appellant’s credibility. The Appellant can make a fresh claim based on the new evidence from UNHCR.

Comments

Case note: QH (Christians - risk) (China) CG [2014] UKUT 86 (IAC) (14 March 2014)

Reprinted from the Asylum Research Consultancy COI update vol. 75. Read the full judgement here.


Risk to Christians in China

(1) In general, the risk of persecution for Christians expressing and living their faith in China is very low, indeed statistically virtually negligible. The Chinese constitution specifically protects religious freedom and the Religious Affairs Regulations 2005 (RRA) set out the conditions under which Christian churches and leaders may operate within China.


(2) There has been a rapid growth in numbers of Christians in China, both in the three State-registered churches and the unregistered or ‘house’ churches. Individuals move freely between State-registered churches and the unregistered churches, according to their preferences as to worship.


(3) Christians in State-registered churches

(i) Worship in State-registered churches is supervised by the Chinese government’s State Administration for Religious Affairs (SARA) under the RRA.


(ii) The measures of control set out in the RRA, and their implementation, whether by the Chinese state or by non-state actors, are not, in general, sufficiently severe as to amount to persecution, serious harm, or ill-treatment engaging international protection.


(iii) Exceptionally, certain dissident bishops or prominent individuals who challenge, or are perceived to challenge, public order and the operation of the RRA may be at risk of persecution, serious harm, or ill-treatment engaging international protection, on a fact-specific basis.


(4) Christians in unregistered or ‘house’ churches

(i) In general, the evidence is that the many millions of Christians worshipping within unregistered churches are able to meet and express their faith as they wish to do.


(ii) The evidence does not support a finding that there is a consistent pattern of persecution, serious harm, or other breach of fundamental human rights for unregistered churches or their worshippers.


(iii) The evidence is that, in general, any adverse treatment of Christian communities by the Chinese authorities is confined to closing down church buildings where planning permission has not been obtained for use as a church, and/or preventing or interrupting unauthorised public worship or demonstrations.


(iv) There may be a risk of persecution, serious harm, or ill-treatment engaging international protection for certain individual Christians who choose to worship in unregistered churches and who conduct themselves in such a way as to attract the local authorities’ attention to them or their political, social or cultural views.


(v) However, unless such individual is the subject of an arrest warrant, his name is on a black list, or he has a pending sentence, such risk will be limited to the local area in which the individual lives and has their hukou.


(vi) The hukou system of individual registration in rural and city areas, historically a rigid family-based structure from which derives entitlement to most social and other benefits, has been significantly relaxed and many Chinese internal migrants live and work in cities where they do not have an urban hukou, either without registration or on a temporary residence permit (see AX (family planning scheme) China CG [2012] UKUT 97 (IAC) and HC & RC (Trafficked women) China CG [2009] UKAIT 00027).


(vii) In the light of the wide variation in local officials’ response to unregistered churches, individual Christians at risk in their local areas will normally be able to relocate safely elsewhere in China. Given the scale of internal migration, and the vast geographical and population size of China, the lack of an appropriate hukou alone will not render internal relocation unreasonable or unduly harsh.

Comments

Case note: RQ (Jordan) v SSHD [2014] EWHC 559 (Admin)

The full judgment is available here.


Facts of the case

The case concerns a claimant who is a Jordanian national of Palestinian descent. He entered the UK on a visitor’s visa and stayed on after its expiry and was arrested by the police. He then claimed asylum asserting that he had unwittingly got mixed up with Hamas and as a result could not return as he feared for his life in Jordan and could not safely go to Palestine either. He also claimed that he had renounced his Jordanian nationality. His claim for asylum was refused and he lodged an appeal but was dismissed in the First Tier Tribunal (FTT). Both Permissions to appeal in the FTT and in the Upper Tribunal (UT) were refused. The claimant’s asylum claim was processed under the Detained Fast Track Process (DFT) which entailed hearing of his appeal in less than two weeks after rejection of the asylum claim by the SSHD. At the hearing, the claimant’s solicitors obtained an expert report but had not investigated his claim relating to his renunciation of nationality. During the hearing, his counsel applied for an adjournment to allow time to do this as well as translate the fax from the Jordanian Embassy. This request was refused. The claimant then applied to the High Court for Judicial Review and was initially refused on paper but granted an oral renewal.


Issues for consideration

The ground for Judicial Review was that the FTT erred in not granting an adjournment, and that the UT was wrong in not granting permission to appeal.


The Judge, relying on the reasoning in SH (Afghanistan), granted the application for appeal and quashed the UT decision as he held that:


The answer, to my mind, is to be found in SH (Afghanistan). There the Secretary of State had expert evidence on which she relied and the appellant wished to produce his own. In those circumstances, the Court of Appeal decided, it was beyond argument that the judge ought, in fairness, to have given the appellant an opportunity to produce countervailing expert evidence. In this case the Secretary of State sought to rely on the lack of evidence to attack the Claimant’s credibility on the nationality point. The FTT Judge ought, in fairness, to have given the Claimant the opportunity to produce that evidence.


There had in fact been very little time to produce it (evidence) prior to the appeal, and an adjournment would have allowed it to be produced, as subsequent events have shown. The results would have been surprising to most of the people involved in the appeal, certainly to the Secretary of State and the FTT Judge. This was one of those open and shut cases which, somehow, were not: see the quotation from Megarry J in paragraph [15] of SH (Afghanistan).


For me now to refuse this application on the basis that the truth does not on balance assist the Claimant on the issue of credibility would, in my judgment, be wrong, even though that might be the result of a fresh determination of his asylum claim. First, such a course would rightly lead to feelings of resentment that such an important decision was made on a false basis of fact. Secondly, this is a case of an asylum claim, where the issue is of a fear of persecution and death if returned to Jordan. Such cases demand the most anxious scrutiny, and the highest standards of fairness: see SH (Afghanistan) at paragraph [8].

Comments

UK Supreme Court decides on third country returns

Mark Symes is a barrister at Garden Court Chambers and co-author of ‘Asylum Law and Practice’. This article has been reprinted from Free Movement.


Any asylum practitioner is likely to come across cases where, rather than investigate the merits of an asylum claim, the Home Office seeks to return their client to a third country elsewhere in the European Union deemed under the Dublin II Regulation to have prior responsibility for assessing the claim, most often because that was the first territory in which they were fingerprinted or recorded as having claimed asylum having crossed the borders into the Member States. Any international system of co-operation in the assessment of asylum claims, in order to have integrity, needs to have some level of trust in the processes and decision making of fellow States, and so it is perfectly sensible for participants to proceed from an assumption that each of them respects the standards of the system as a whole. But when particular countries experience large scale arrivals that test their capacity to breaking point, or are unable to cater for the particular needs of returnees, what approach should national courts take in assessing whether the ensuing problems involve a breach of Article 3 ECHR?


The Supreme Court in EM Eritrea and Others [2014] UKSC 12 has now answered this question in its keenly awaited ruling addressing the test for compatibility of returns under the Dublin II Regulation with European Union law, and in doing so has overturned the decision below. The Court of Appeal had found that even if there were difficulties within an asylum reception system which created a substantial risk of incompatibility with asylum seekers’ human rights, this could only bar returns under Dublin II where the problem arose due to a systemic failure. However, the Supreme Court disagrees, and in a single opinion by Lord Kerr with which the other Judges unanimously concur, it has now been made clear that in third country cases, as in all others, the relevant question is whether there is a real risk of the minimum level of severity being traversed. Identification of a systemic failure is one route by which this may be demonstrated, but it is by no means a necessity in every case.


Whilst there is a presumption that fellow Member States comply with their responsibilities vis-á-vis fundamental rights, says Lord Kerr, this does not ‘extinguish the need to examine whether in fact those obligations will be fulfilled’: and the presumption must never stifle the presentation and consideration of relevant evidence. And, although UNHCR evidence is of special importance given the organisation’s unique and unrivalled expertise in asylum law, Member States may nevertheless acquire knowledge of the possibility of inhuman and degrading treatment via other mediums. As was submitted by UNHCR at the hearing, just because UNHCR had not called for a halt of returns to Italy, this did not mean the agency had given Italy ‘a clean bill of health’.


What does this mean in practice? In future Dublin cases, Italian or otherwise, it will be essential to evaluate all the facts of the case, including any individual characteristics which might make an asylum seeker more vulnerable. The Supreme Court did not look at the evidence for itself, and so the question of the adequacy of Italy’s reception conditions for asylum seekers remains moot: a group of cases has been identified to test the issue, presently listed to be heard together before a High Court Judge after 1 May 2014. And even that may not be the last word on the subject: the Grand Chamber of the European Court of Human Rights heard Tarakhel v Switzerland on 12 February 2014 and will in due course express its own view on the situation.


Lord Kerr adds that ‘The Dublin Regulation and the Reception Directive must be interpreted and applied in conformity with fundamental rights’, which may well indicate that it would be wrong to extend the principle that Dublin II does not generally confer individual rights to challenge allocations of responsibility between Member States so as to prevent asylum seekers from raising arguments based on Article 15 of Dublin II, addressing humanitarian dependency.


As well as your correspondent, the legal team included Monica Carrs-Frisk QC, Raza Husain QC, David Chirico, Melanie Plimmer, Michael Fordham QC, and Marie Demetriou, instructed by Wilsons LLP, Sutovic and Hartigan, Switalskis, and UNHCR. The case could not have been taken so far without the assistance of NGOs across Europe, including the AIRE Centre and ECRE.

Comments

UNHCR issues new Guidelines on Temporary Protection: They need a rewrite

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.

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