Fahamu Refugee Legal Aid Newsletter

Unprotected Congolese refugees In Gabon

Amber Stechman is an intern with the Fahamu Refugee Programme in Oxford.

Approximately 12,000 Congolese from the Republic of Congo, also known as Congo-Brazzaville, fled to Gabon during civil war in their country of origin between 1997 and 1999.

In December 2010, following a decade of tripartite discussions, the governments of the Republic of Congo and Gabon together with UNHCR agreed that the Republic of Congo was safe to return to and that those refugees not wishing to return would have their refugee status re-examined, have their status changed from refugee to migrant, or be resettled. On 11 November 2011, the government of Gabon announced the cessation of refugee status for refugees from the Republic of Congo.

Many Congo-Brazzaville refugees fear return, however, invoking human rights abuses in the Republic of Congo and the 1999 Beach disappearances. They also know that few returnees have found a means of subsistence in Congo-Brazzaville. Members of an organisation representing some 1,857 Congolese, called the Collectif des Refugiés Congolais Delaissés au Gabon (CRCDG: The Collective of Congolese Refugees Abandoned in Gabon), claim to have well-founded fear for their safety and that of their families upon return.

As well as disputing the safety of the Republic of Congo and the legality of cessation of their refugee status, the CRCDG maintains that appropriate alternatives have not been made available to those who feel unable to return. According to the CRCDG, only ten Republic of Congo refugees were awarded exemption from cessation during a hasty examination process advertised only by a poster on the door of the UNHCR building in Libreville. The CRCDG claims that the ten people exempt from cessation were members of an organisation that had previously worked closely with UNHCR.

Members of the CRCDG refuse voluntary repatriation. They also refuse the only other option offered to those who were not exempt from cessation: to become economic migrants. The economic migrant permit must be renewed every two years, costs 300,000 CFA francs (588 USD), and is conditional on professional activity. The CRCDG deems the permit to fall short of the protection requirements of its members: it is neither durable nor secure insofar as an individual who loses his/her employment can be deported at any time. Moreover, the current trend of ‘gabonisation’ of jobs in Gabon, i.e. replacing foreign workers with Gabonese, is seen to heighten the insecurity of the permit.

The CRCDG maintains that refugees are harassed by police and live in constant fear of incarceration. After staging a sit-in at UNHCR in Libreville and taking refuge in a cathedral, 150 members of the CRCDG (men, women and children) were incarcerated for six months and subsequently deported to the Republic of Congo in November 2012. Two children were born in prison and one person died during the repatriation process.

UNHCR recently closed its office in Gabon. Asylum is now dealt with by a national body with oversight from the regional UNHCR bureau in Kinshasa. The CRCDG said that they had tried to enter into discussions with the authorities, but that they have been refused access to asylum mechanisms.

For more information, please contact the Collectif des Refugiés Congolais Delaissés au Gabon.

CASE NOTE: Victim of torture could meet definition of an ‘exceptional humanitarian’ case and therefore serve as a release provision under the Anti-Infiltration Law.

Siamon Woldu v. Minister of Interior, 1689/13, Israel: Supreme Court, 18 April 2013. Reprinted from Refworld.

The Supreme Court accepted an appeal against a verdict rendered by a Lower Court that rejected the Petitioner’s request to release an asylum seeker who survived the torture camps in Sinai from detention. The Lower Court ruling stated that severe torture cannot be considered as an ‘exceptional humanitarian reason’ for release under the Anti-Infiltration Law. All asylum seekers who have entered Israel since June 2012 have been jailed under this law according to which asylum seekers can be released only in exceptional circumstances including ‘exceptional humanitarian’ cases. The Lower Court’s ruling stated that torture cannot be considered an ‘exceptional humanitarian reason’ for release because it occurs too often, adding: ‘It appears to me that recognizing [victims of] torture like those described by the appellant as a justifiable circumstance for release from custody, is likely to lead an increase in the phenomenon of torture and to a deterioration, and even to the creation of a phenomenon among infiltrators of self-inflicted harm. And that, in this case, is not desirable.’

Following this ruling, the Petitioners appealed to the Supreme Court on behalf of the Eritrean asylum seeker and victim of torture. The Supreme Court rejected the Lower Court’s decision and held that each case of an asylum seeker requesting release as a result of torture from which they suffered in Sinai needs to be examined based on its on merits and that it is possible that detaining people who are survivors of torture could further harm their physical and mental health. Accordingly, the Court held that the fact that they are victims of torture could meet the definition of an ‘exceptional humanitarian’ case and therefore serve as a release provision under the Anti-Infiltration Law.

CASE NOTE: Minority is sufficient to constitute a ‘special humanitarian’ reason and therefore serve as a release provision under the Anti-Infiltration Law.

Anonymous v. Minister of Interior, 44920-03-13, Israel: Beer Sheva District Court, 18 April 2013.

Reprinted from Refworld

Petitioner 1 is an Eritrean resident born in 1982 who entered Israel illegally with her two minor daughters (Petitioners 2 and 3, aged eight and eleven respectively) on June 13, 2012. Since then and up until the date of the decision being rendered, they have been in detention under a deportation order according to the amended Anti-Infiltration Law (New Law). According to section 30(A)(v)(2) of the New Law, there will be a discretionary ground for release regarding a child asylum seeker (or ‘infiltrator’, in the language of the Law) located in detention – even if one of the categorical release provisions under section 30(A)(b)(1) (where detention will cause harm to the health of the detainee) or 30(A)(b)(3) (where a minor is unaccompanied) does not exist. The judge held that the authority to release the child Petitioners comes from the fact that the Petitioners’ minority – girls aged 8 and 11 – is sufficient to constitute a special humanitarian reason. This discretionary determination will be made by considering the age of the child asylum seeker as well as the additional circumstances in his or her case.

The judge continued to state that in the case of very small children – including boys or girls aged 8 and 11 – their age is sufficient to constitute a special humanitarian reason, all the more so when dealing with two girls aged 8 and 11 who have been detained for more than ten months and in relation to whom deportation from Israel is not on the horizon (given the fact that they are Eritrean citizens and due to the government’s decision regarding collective protection for Eritreans). The judge held that continuing to leave the child Petitioners in detention for an unlimited period of time will without a doubt harm their mental and social development.

The judge noted in his decision that, while the State is attempting to preserve its sovereignty and cope with the widespread phenomenon of illegal immigration (‘infiltration’ in the language of the Law), out of the 2500 ‘infiltrators’ being held in detention, only 15 ‘infiltrators’ are infants up to the age of 2 years old and 26 are between the ages of 2 to 10. Therefore, the judge held that infants or small children form a small sub-group, requiring different treatment from the larger group of illegal immigrants (‘infiltrators’), on the basis of their age.

SPECIAL FEATURE: Report on the rejected asylum seekers of Choucha refugee camp

Contributed by the Centre de Tunis pour la Migration et l’Asile / Centre of Tunis for Migration and Asylum.

UNHCR wants to close the Choucha refugee camp, located near the Tunisian border with Libya, by the end of June 2013. After more than two years of living in the desert, between two and three hundred rejected asylum seekers are without a sustainable or legal way out of their situation. Since 24 October 2012, these Refugees without Status have received no food from the camp authorities. Medical assistance has also been cut. On 1 April, the electricity supply to their sector was cut and on 7 April, they found themselves without drinking water. Drinking water was reinstated after a fortnight, but at the time of writing (4 May) it has again been cut.

This deprivation of their fundamental rights is a deliberate strategy by UNHCR to persuade these people to accept ‘voluntary’ repatriation to their country of origin. The fact that not one refugee has taken up the IOM offer of a one-way ticket and between 700 and 2500 USD per head would suggest that they have good reasons not to return. With this report we want to solicit active intervention in order to find a solution to the galling situation being faced by this group of people – who include young children, lone teenagers, pregnant mothers, the elderly, infirm, and disabled.

The general situation in Choucha Camp

During the war in Libya, between February and October 2011, over a million people fled to Tunisia. Five camps were created on the Tunisian side of the border post at Ras Jdir to hold some of these refugees. Somewhat more than two years after the beginning of this exodus, the vast majority of these refugees have either returned home or been repatriated. However, the refugee camp at Choucha, located 9 km from the border, is still open, with around 1,000 people living there in tents that are fast wearing out.

Most of the inhabitants of Choucha experienced war and violence in their home countries, before escaping to Libya. In Libya, they were again subjected to violence and human rights violations as the fighting escalated. Their life since moving to Choucha has only added to the trauma, from the extreme climatic conditions of heat, cold, wind, and sand to the racist attacks by inhabitants of Ben Gardène, 25 km away. In one attack in May 2011, a fire burned down three-quarters of the camp, fifteen refugees were killed, and many more were injured. Religious intolerance has also been a continuous backdrop to the lives of the Chouchans: in 2012, the Christian Church tent was vandalised and destroyed. The uncertainty surrounding their fate is another source of stress: facing the recurring threats of forcible repatriation which for many, they know, will lead back to imprisonment, torture and likely death.

Those who arrived in Choucha who didn’t want to go back to their country of origin had to go through UNHCR’s Refugee Status Determination (RSD) process. If their RSD application was rejected, applicants had a chance to appeal. Their written appeal might sometimes be complemented by one or more personal interviews. Those refugees unable to read or write had to find another refugee they could trust to help them: there was no assistance from UNHCR. Once an appeal is rejected, UNHCR at Choucha tells the refugees that their file is closed, and the applicant usually receives a letter advising her/him that s/he has to leave the camp within two weeks following one of three choices:

a) Return to their country of origin facilitated by IOM;

b) Return to Libya, with no possibility of further UNHCR protection;

c) Be handed over to the Tunisian police to be forcibly deported.

In fact, UNHCR has the power to re-open files on the basis that there is

‘serious reason to believe that the claim was improperly decided and/or that grounds for eligibility for refugee status were not adequately examined or addressed.’[1]

UNHCR does not mention this possibility at Choucha, but then refugees at Choucha received no information, let alone legal advice, about the RSD process. There was also considerable informal pressure (from UNHCR staff) on refugees to give up and not go through the RSD process. They were told ‘it’s a waste of time’, ‘there’s nothing in it for you’, ‘you’ll have to stay months or years in this dangerous desert with scorpions and snakes’, etc.

Those granted refugee status who arrived at Choucha before 1 December 2011, may be considered for resettlement in a third country.

According to UNHCR data, on 16 March 2012, there were 3,363 people living in Choucha. This total consisted of 171 awaiting status determination, 2,923 Refugees with Status, and 266 Refugees without Status. On 29 March 2013, there were only 819 Refugees with Status still in the camp, together with an additional 30 people still awaiting determination and the 266 Refugees who had been refused status.

At the onset of 2013, the inhabitants of Choucha could be divided into five categories:

· Refugees with Status, approved for resettlement: These people have been selected for resettlement and are awaiting departure to their host countries. On 15 March 2013, there were 632 refugees in this category, in addition to the 2,907 refugees that had already been resettled.

· Refugees with Status not yet accepted for resettlement: These refugees are waiting for review of their cases by prospective host countries. Resettlement is not assured, because it is subject to the criteria established by each individual country. As applicants’ files can only be submitted to one host country at a time, they remain blocked while a prospective host country examines them.

· Refugees with Status but without the possibility of resettlement: Despite having refugee status, people in this category do not have the possibility of being resettled due to the fact that they registered after the resettlement programme deadline of 1 December 2011. Between 300 and 400 refugees fall into this category.

· Refugees without Status: These are persons who have gone through the RSD process and whose appeals have been rejected and their files closed. They are no longer under the protection of UNHCR: they continue to struggle to survive, despite their marginalisation and UNHCR’s harassment.

· Late arrival Refugees with RSD pending: Persons who arrived at the camp after the 1 December 2011 deadline and have filed asylum applications, but are still waiting for a response from UNHCR. As of 29 March 2013, there were 30 people in this group. Since they arrived at a time when UNHCR staff had already been drastically reduced, their cases are being dealt with much more slowly.

UNHCR’s Malpractice and Mismanagement

In relation to the RSD process, there have been numerous reports of malpractice and mismanagement in the work of UNHCR at Choucha:

Failures in the RSD procedure

Problems caused by information-sharing

UNHCR plainly works closely with the diplomatic and consular – and hence intelligence and security – staff of foreign embassies: this is not only unnecessary, it is dangerous and should never be done. At Choucha, it is clear that in a number of cases, this information sharing prejudiced refugees’ claims for asylum. On a number of occasions, refugees’ claims for status were rejected after visits by officials from the country concerned. While the evidence is circumstantial, the fact that it has occurred on several occasions is compelling.

‘From 42 remaining Nigerians in Choucha, 40 of them have been rejected. They received their rejections after a visit by the Nigerian ambassador to Choucha. He visited the Camp in September 2011. After a long conference with UNHCR and the Tunisian military, the ambassador talked to all the Nigerians. He told them, that he had read their personal files from the UNHCR and called them liars [emphasis added]. Furthermore, he told them to leave the camp and threatened them that the Nigerian government would open case files against them.

The Chadian community, of which 149 persons are rejected asylum seekers, presents the biggest group of rejected refugees in Choucha. On 17 October 2011, a representative of the ‘Chadian Intelligence Service’ [actually two men from the Renseignements Généraux] who works for the Chadian embassy in Libya visited the… Chadian community in order to find out their numbers and names. Afterwards, refugees saw them entering UNHCR premises as well as being in contact with the Tunisian military. After this visit, family members of refugees (who still live in Chad) received threats.’^[2]

One Chadian refugee (and his family) was rejected two days after this visit – five months and eight days after his RSD interview. On the same occasion, fourteen other Chadian refugees also received rejection letters for their RSD applications.

The most corrosive and incontestable effect of such unauthorised information-sharing is on the refugees themselves. As they became aware that what they said in their RSD interview was likely to be shared with the governments or agencies from which they were fleeing, those remaining were seriously inhibited in what they said. This was particularly significant for the large majority who still had family members in their country of origin.

Such inhibition was of course, exacerbated by the lack of any legal advice – see following section on ‘Lack of legal aid.’

Interpretation deficiencies

There were no professional interpretation services provided for refugees at Choucha. Instead, refugees had to rely on other refugees for interpretation. While these interpreters may have had good intentions, they were untrained, and had to interpret into English or French, which was not their mother tongue. Moreover, they were often interpreting from languages in which were not proficient. Interpretation is a difficult and highly skilled task:

‘An interpreter… must be able to translate in both directions on the spot, without using dictionaries or other supplemental reference materials. Interpreters must have extraordinary listening abilities… excellent public speaking skills and the intellectual capacity to instantly transform idioms, colloquialisms and other culturally-specific references into analogous statements the target audience will understand.’[3]

There was almost no re-translation or re-interpretation of refugees’ statements, and no refugees had their interview transcript read back to them – the basic requirement for a fair interview.

It is highly probable that incorrect decisions were made partially as a result of interpreters’ incompetence.

The absence of professional interpreters very likely inhibited asylum seekers’ freedom of expression: refugees seldom want other inhabitants of the camp to know the details of their personal traumas and history. With refugee interpreters, those being interviewed feel uncomfortable, unable to speak freely and their responses may be interpreted incorrectly.

Interviewees did not know that they had the right to stop the interview and ask for another interpreter. On the rare occasions when they did complain, their requests (and rights) were not respected.

In some cases, UNHCR employed interpreters who belonged to clans or ethnic groups opposed to those of the asylum seeker. This was the case with Arab Darfurians and African Darfurians.

‘Twenty-nine persons within the Darfurian community of Arab origin were rejected by UNHCR on appeal. They complained that the interpreter… belonged to the enemy conflict party in Sudan and was therefore prejudiced and biased… The refugees of this community stated before beginning the interview that this interpreter was biased and that they would not be able to explain their reasons for flight in the presence of this person. Instead of finding an acceptable interpreter, UNHCR staff insisted on continuing the interview with this interpreter. After their first rejection many individuals of this community appealed, arguing that the interpreter was biased. Surprisingly they found the same interpreter in the second interview over again.’[4]

Interpreters such as these were not trusted by the refugee being interviewed so s/he could not disclose information that was pertinent to her/his case.

Unfavourable attitude of UNHCR staff

Asylum seekers have reported that UNHCR staff created a stressful atmosphere during the interviews, instead of showing patience and acknowledging the difficulty of discussing one’s personal life story.

UNHCR staff were under considerable pressure to perform RSD interviews as quickly as possible. There are reports of staff doing seven or eight interviews a day. One hour was considered to be ‘a good interview.’ The pressure to be quick led to stressed encounters, with many reports of staff shouting at interviewees.

UNHCR staff were also stressed by the ‘security situation’ at Choucha, with frequent evacuations of the UNHCR compound due to confrontations between UNHCR and the local workforce at Choucha (see below – Problems with the Camp Management).

Subsequently, RSD interviews were conducted at UNHCR’s Zarzis offices. While this may have been more conducive for the staff, refugees were transported from the camp by bus in the early morning. They frequently had to wait a long time for their interview, during which they were given neither water nor food. Understandably, they often complained of feeling disorientated – not the best state in which to recount your life’s story, inclusive of traumatic events.

Lack of information on procedure

UNHCR’s guidelines, ‘Procedural Standards for Refugee Status Determination under UNHCR’s Mandate’ emphasise the importance of providing information to asylum seekers regarding RSD procedure. According to the refugees, no information was provided to those going through the RSD process at Choucha. There was no explanation of the steps in the process, no information on the grounds for asylum, no counselling and no legal advice, much less information on the asylum seekers’ rights. Refugees applying for Refugee Status did not even know what the definition of a refugee was.

The RSD process requires asylum seekers to recount and summarise their personal past with precise facts including dates and names. This task can be extremely difficult for persons who have undergone and are obliged to talk about traumatic experiences. There was no screening for Post-Traumatic Stress Disorder, although it is clearly prevalent among the refugees.

Some of the refugees have had very little education and a significant proportion are unable to read or write in any language. They come from come from widely differing cultural backgrounds, with very different conceptions of time and ways of describing reality. The lack of information, multicultural counselling and PTSD screening relating to the RSD process leaves asylum seekers unprepared and ill-equipped to satisfy UNHCR’s criteria.

Lack of legal aid

Asylum seekers at Choucha were not provided with any legal aid. According to UNHCR’s Procedural Standards,

‘At all stages of the procedure, including at the admissibility stage, asylum-seekers should receive guidance and advice on the procedure and have access to legal counsel.’[5]

As in all legal procedures, and particularly in relation to asylum claims, it is essential that individuals be professionally assisted and informed about their rights, obligations, status and options. Throughout any asylum claim and especially in cases of appeal, it is of the utmost importance that the refugee be assisted by an advocate. This person should accompany the asylum seeker, provide guidance through the maze of questions and ensure that the applicant’s rights are not violated. The lack of independent legal counsel contributed to depriving many of those who went through the RSD process at Choucha of justice.

Lack of information in cases of rejection

UNHCR did not provide rejected asylum seekers with information about the reasons for their first rejection. It is crucial for asylum seekers to fully understand the weak areas of their claims in order to ensure appropriate preparation for an appeal

‘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.’[6]

Problems in the handling of asylum seeker files

Mistakes occurred in the transcription of names and in the designation of nationalities from one file to another. These unprofessional errors led to an atmosphere of mistrust by asylum seekers towards UNHCR.

Long waiting periods during the processes

The procedures in Choucha were very slow. The waiting period for the first interview took an average of six months, despite UNHCR’s guidelines advising that

‘a decision should normally be issued within one month following the RSD interview or, in cases raising complex issues, within two months.’[7]

The fact that the whole procedure could take over a year to complete was psychologically demoralising.

Debased RSD decisions

As time passed, it became clear to the refugees that many RSD decisions were being made practically on a country by country basis. As the fighting in Côte d’Ivoire subsided, for example, UNHCR officials would say things like

‘The fighting has stopped in Côte d’Ivoire; you are from the malinké tribe, just like your new President – so you can go home now. There is no reason for you to be a refugee anymore…’^[8]

On another occasion, one of the Senior UNHCR staff summoned one of the national groups (all of whose members were appealing against their RSD decisions) and told them that there were four statuses to be shared amongst the entire Francophone community: one Chadian, one Ivoirian, one Malian, and one Senegalese got their status that evening. The others received final rejection notices and their cases were closed.

On other occasions, refugees received rejection notices without any interview at all:

‘There are cases in which persons received their final rejections without having had an interview at all, for example this might be the case when the asylum claims of all family members are processed as a single one.’^[9]

Statistical evidence

While there is wide variation in the success rate of appeals against UNHCR’s RSD decisions, Choucha’s extraordinarily low rate of success of ‘a handful’ (less than 1%) against a 2011 global average of 50%^[10] would suggest that the appeals procedure at Choucha needs to be re-examined.

Problems with the camp management

Tunisians were employed by UNHCR to undertake various tasks in the camp including cleaning and cooking, but employees were not informed about their working conditions. When their contract came to an end, workers protested for several weeks, blocking the road to the Camp and threatening the refugees. During this time, UNHCR staff were unable to enter the Camp, leaving the refugees without protection.

UNHCR has followed a policy of divide and rule in the camp. It began by holding separate meetings with the refugees with status and the refugees whose claims had been rejected. From 24 October 2012, the refugees without status were refused all food notwithstanding the fact that this group included pregnant women, children, lone teenagers, the elderly and infirm, and people with special needs.

UNHCR is using a tacit policy of starvation, intimidation and alienation to pressurise the Refugees without Status into accepting ‘voluntary’ repatriation to their country of origin. Since 24 October 2012, all work in the camp by members of this group has been stopped and they have been refused camp services: as well as food, they are unable to receive medical care as they do not possess the ID card, which is only issued to Refugees with Status. Furthermore, UNHCR has ordered all the Refugees with Status not to help the Refused Refugees, not to give them money, not to share food, not even to talk to the Refused, on pain of creating problems in the resettlement programme of the Refugees with Status.

In February 2013, UNHCR moved all the Refugees without Status into a single sector – Sector E – which is now the largest sector in the camp. (Refugees were previously organised according by national or ethnic communities, regardless of status.)

These separations have exacerbated tensions, and created conflicts and divisions between and among these groups, as has forcing the Anglophone, Francophone, and Arabic-speaking communities to share the same sector (E).

On 1 April 2013, UNHCR physically cut and removed the electricity supply to Sector E – presumably to ensure that it was not reinstated. On 7 April 2013, UNHCR cut the supply of drinking water in this sector. There was no drinking water in Sector E for around 10 days, although it was eventually reinstated on the instructions of the Tunisian Army. The drinking water supply has since been cut again (on 1 May 2013).

Plainly, this strategy is successfully increasing the suffering of this unfortunate group of 300 odd people. It is reprehensible that UNHCR now sees increasing the suffering of innocent people fleeing conflict, as part of its mandate.

UNHCR staff have left the camp on several occasions due to disturbances or, more often, the fear of disturbances. When this happens, they leave the refugees without protection and assistance – although considering what this has come to mean, the camp’s inhabitants may be thankful. UNHCR staff were absent however, when inhabitants of Ben Gardène attacked the camp in May 2011, and as mentioned above they were absent for weeks at a time, on several occasions, when problems arose with the Tunisian workers.

Future prospects for rejected asylum seekers

All of the following solutions, presented as solutions for the Refugees without Status, pose life-threatening dangers:

Returning to their home country

As mentioned in the opening paragraph of this report, the International Organization for Migration (IOM) has proposed an assisted ‘voluntary’ return for all those Refugees whose applications for Refugee Status have been rejected. For the majority of these people, returning to their countries means that they are highly likely to be subjected to serious violations of their human rights. The fact that asylum seekers have remained in this desert camp for two years, facing extremely difficult environmental conditions, a lack of private life and great hardships in relation to their basic needs, attests to the seriousness and validity of their fear of the danger they would face were they to return to their countries of origin.

Going back to Libya

Although the war in Libya has ended, foreigners and particularly sub-Saharan migrants, are exposed to serious risks of violence and human rights violations mainly due to insecurity and the rule of the militias. When they fled Libya, many of these asylum seekers had already been victims of traumatic experiences there (including physical violence, torture, extortion, detention, and other abuse). For the few who have left Choucha and returned to Libya, there have been reports of disappearance, imprisonment, attacks, and murder.

Crossing the Mediterranean to Europe

An unofficial solution, seriously considered by many of the Rejected Refugees, is to attempt to reach Europe by boat. This poses great risks to their lives. In 2011 and 2012, frustrated by the slow progress of the RSD procedures, some refugees decided to attempt to cross the Mediterranean. Many of them are still missing. More than 1,500 deaths and disappearances at sea were counted in 2011 by international organisations (including UNHCR, Migreurop, FortresseEurope). This fact increases our fears and concerns for the safety of these people.

Staying in Tunisia illegally

This solution leaves people in a continuing situation of illegality and insecurity. Without documentation from UNHCR or the Tunisian State, they are liable to arbitrary imprisonment at any time. In Tunisia, illegal foreigners are currently held in detention until they are able to raise sufficient funds to pay their own deportation.

Conclusions

Rejected asylum seekers have organised themselves and have led several actions outside the offices of UNHCR, the European Union delegation in Tunis, international organisations and embassies. On 28 January 2013, rejected asylum seekers, supported by international and Tunisian activists, organised a sit-in in front of the UNHCR headquarters in Tunis. They have also protested at the World Social Forum, in Tunis from 26 to 30 March 2013 in an attempt to raise international support and awareness about their situation.

Through their protests, participants underline the need for an equitable and sustainable solution to their galling state of affairs.

NATO member states and others that were involved in the Libyan war, have an indisputable responsibility to assist in the resolution of the humanitarian problems caused by their actions. This responsibility must be acknowledged for the sake of all those who had to flee Libya and who are now marooned in Tunisia. These three hundred-odd souls remaining from the humanitarian crisis created by the war in Libya should not be considered a solely Tunisian problem, but should be accepted as an international issue requiring an international humanitarian solution.

We therefore urge international organisations and governments to meet their commitments and responsibilities under international conventions for the protection of human rights. Rejected asylum seekers currently residing in the refugee camp at Choucha need to be protected and relocated to safe countries.

Analysing the situation of this group and the responsibilities undertaken by UNHCR at Choucha, it is obvious that a clear-cut distinction between migrants and refugees, terms used by UNHCR, cannot and do not reflect the reality on the ground. UNHCR itself states that

‘until now, no state has been able to successfully develop strategies, which would allow to distinguish in a just and effective manner between refugees with a well-founded fear of persecution and migrants with economic or other motivation.’

The failings in the RSD procedure at Choucha listed in this report are more than sufficient to suggest that there is serious reason to believe that the refugees’ grounds for eligibility for refugee status were not adequately examined or addressed and that the refugees’ claims for refugee status were therefore improperly decided. An examination of four of the Rejected Refugees Testimonies – two from Côte d’Ivoire, one from Chad and one from Pakistan – confirms this conclusion.

In the interests of justice, all three hundred odd cases of the Rejected Refugees should therefore be reopened. The individuals concerned should receive comprehensive and culturally relevant information on the RSD process, independent legal advice and advocacy, and independent oversight of the re-examination of their cases. In the meantime, their human rights, including their access to water, food, shelter, electricity, medical care and education for all those needing it, should be reinstated immediately.

––

[1] From Section 9.2 of UNHCR’s Procedural Standards.

[2] From: ‘Report on Choucha Refugee Camp - March 2012,’ a report by Marvin Lüdemann and Mareike Kessler, March 2012.

[3] Language Scientific

[4] From: ‘Report on Choucha Refugee Camp - March 2012,’ a report by Marvin Lüdemann and Mareike Kessler, March 2012.

[5] UNHCR Guidelines (2001) quoted in: Refugees’ Experiences of Detention in Egypt, by Richard Grindell 2003, section on: Right to legal counsel for detained refugees with immigration cases, p.66.

[6] UNHCR Procedural Standards

[7] RSDWatch

[8] Verbal testimony by Sector E refugee.

[9] From: ‘Report on Choucha Refugee Camp - March 2012,’ a report by Marvin Lüdemann and Mareike Kessler, March 2012.

[10]RSDWatch

Stuck at Choucha

Contributed by Oliver Tringham.

The water supply to the entire refugee camp was turned off on Wednesday, 22 May 2013 and still hasn’t been turned back on at the time of writing. The camp is due to close at the end of the month – on 30 June 2013.

UNHCR is turning up the pressure to the maximum to get those still living at Choucha to leave. Unfortunately, the camp’s inhabitants don’t have anywhere to go.

Those with refugee status have received 90 DT and been told to rent somewhere in Ben Gardène. Some of them have done this. But a month’s rent is at least 120 DT and then there is the difficulty of finding a place… Waseem Younis tells the story:

Some of the refugees (with status) signed and agreed to resettlement in Tunisia. Yesterday, some of the Islamic Relief staff members/workers were told by the UNHCR and Islamic Relief Head to take a few refugees from the Somali communities and find them houses to rent.

They sat in their vehicle and went to search for houses to rent. They stopped at many points and places, roads, street and at many corners.

The Islamic Relief workers asked many Tunisian people if there are houses to rent in their area.

The Tunisian people asked the Islamic Relief: For whom? Families?

‘No, for these people,’ said the Islamic Relief.

‘Where are they from?’ the Tunisian people asked.

‘They are from Choucha, refugees,’ Islamic Relief said.

‘No, no, these have germs, diseases. Go and look somewhere else,’ replied the Tunisian people.

Almost all the Tunisian people responded in the same way.

When Islamic Relief got tired, they decided to have a rest and drink water, tea and coffee as per each one’s choice.

Everybody got down off the vehicle, entered into the coffee shop and ordered.

There, the Islamic Relief workers tried their luck again with the coffee shop worker, and asked him:

‘Are there some houses to rent?’

Can you believe what the coffee shop worker answered?

‘Oh, for these Choucha people? Why don’t you let them stay in your own house? Why are you spreading these diseases here among us?’

The Islamic Relief workers kept quiet and could not say anything else. Finally they took their coffee and left.

The whole day’s effort had been useless, and they returned to Choucha.

After getting out of the vehicle, one of the refugees turned to the Islamic Relief workers and said:

‘You may consider this as a warning from us: never ever come to us again and tell us to stay in Tunisia. We are better and safer here in Choucha in our tents. We don’t need houses in this country. We heard and understood what all the Tunisian people said to you against us refugees. You didn’t even stand up for us with the waiter in the café. It was a huge insult, but you could not say a single word in our defence, or even for your own self-respect. How do you expect us to stay among these people? So, do not come to our community again.’

The Somali community was very upset and angry after this.

Is it worse or better for the Refugees without Status? They certainly don’t get any trips into town in the minibuses of UNHCR or its agents. They stay in Sector E on the other side of the camp to the refugees with status. The hot weather has come and the Status-less Refugees swelter in their decaying tents. They are without water – they have none with which to wash, nor any to sprinkle on their bodies to cool themselves ever so slightly. And there is no shade at Choucha.

Je crois que Dieu est avec nous, il restera toujours avec nous,

(I believe that God is with us, he will always be with us)

The Camp authorities turned off the electricity to Sector E in February 2013 – and ripped out the supply cables. When the refugees didn’t leave, the authorities started turning the drinking water to the sector off and on. They have been doing this for a couple of months, now – but still the refugees won’t budge.

There was a ray of hope in the middle of May, when the Tunisian Minister for Social Affairs visited the camp. His aid had spent the whole of the previous day talking to the refugees without status – initially on an individual basis, then in language groups (French speakers, English speakers, Arabic speakers) when it became clear that he would not have enough time to talk to everyone. Subsequently, the refugees were invited to make written submissions to the Minister and some have certainly done this. The Minister is a former surgeon and doubtless has not forgotten his Hippocratic Oath – would it be better if UNHCR staff were all required to take such an oath?

The refugees are living on their faith. The evidence that UNHCR has made significant errors in the RSD process is overwhelming, but as yet, there is no sign of the much needed re-examination of their files. The Tunisian Government currently seems unable to address the issue, although it certainly has the capacity to do so. The initial Tunisian response to the Libyan crisis was extraordinarily generous: an example to the world. Let us hope that the Tunisian Revolution can continue long enough to enable viable solutions to be found for the refugees still stuck at Choucha.

Refugee status determination in Hong Kong: A new era for legal aid providers?

Sonya Donnelly is currently working as a Staff Attorney with the Hong Kong Refugee Advice Centre Limited (HKRAC.) HKRAC is the only NGO that provides pro-bono legal aid for asylum seekers undergoing the UNHCR refugee status determination process in Hong Kong. An early draft of this article appeared on the Human Rights in Ireland Blog.

A landmark judgement on international refugee law was handed down by the Hong Kong Court of Final Appeal in March 2013 which could see the foundation of a unified, government led protection screening mechanism implemented in Hong Kong. Currently two separate, but parallel paths for protection exist in Hong Kong: these include an RSD screening mechanism for refugee claimants conducted by UNHCR and a screening mechanism for torture and cruel, inhuman or degrading treatment or punishment (CIDTP) claimants by the Hong Kong government under the Convention against Torture. C, KMF and BF v Director of Immigration and Secretary for Security (FACV Nos. 18/19/20 2011) (the C case) opened in the Court of Final Appeal on 5 March 2013 and judgment was delivered less than three weeks later. Importantly, UNHCR acted as an intervener in the case. Central to the case was the issue of non-refoulement of refugees and whether it has attained the status of jus cogens under customary international law (CIL).

Article 33(1) of the Refugee Convention contains a prohibition against refoulement. The article specifically states that:

No contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

As a brief summary of the position refugees are faced in Hong Kong: Hong Kong is a Special Administrative Region of China (HKSAR). China resumed sovereignty over Hong Kong in 1997 after almost 150 years of British colonial rule. While China now has responsibility for foreign relations and defence, Hong Kong operates under a different political system from the mainland, has an independent judiciary and a common law framework. While China has now ratified the 1951 Refugee Convention and its 1967 Protocol this has not been extended to Hong Kong and there are no national laws that provide protection specifically for refugees. It is the firm policy of the HKSAR not to grant asylum to refugees and that policy was not challenged in this case. The critical decision for the Hong Kong Director of Immigration in such cases is whether to order the removal of such claimants and if so, to which country they should be removed.

The Court of Final Appeal, which is made up of five judges, is the highest appellate court in the HKSAR. The judicial bench for the C case was made up of three permanent judges, one non-permanent judge and, as is usual in the Court of Final Appeal, one judge from another common law jurisdiction. The four main issues before the court were:

1. Is there a norm of customary international law (CIL) requiring non-refoulement of refugees?   

2. If this is so, is it a part of the domestic law of Hong Kong?

3. If it is not part of the domestic law of Hong Kong, has the Director of Immigration as a matter of practice exercised his discretion such that it has de facto recognised that concept?     

4. If it is part of the law of Hong Kong, is the Director obliged to determine the claims for refugee status, or are they delegable to the UNHCR?

Asian Davies in her article sets out the position of many Asian jurisdictions:

The majority of Asian states have not signed onto the major international refugee law instruments which promote refugee recognition and protection. Yet, second to Africa, the Asian region has had the highest number of refugees since the Second World War.

As to why Hong Kong has never had the Refugee Convention extended to it, in a paper presented to the Legislative Council Panels on Security and Welfare Services in July 2006, the government set out the following explanation:

Hong Kong is small in size and has a dense population. Our unique situation, set against the backdrop of our relative economic prosperity in the region and our liberal visa regime, makes us vulnerable to possible abuses if the [Refugee Convention] were to be extended to Hong Kong. We thus have a firm policy of not granting asylum and do not have any obligation to admit individuals seeking refugee status under the [Refugee Convention.]

Refugee claimants are not simply expelled to their country of nationality or the country from where they have come. A Memorandum of Understanding between the authorities and UNHCR has allowed UNHCR to complete refugee status determination (RSD) of asylum seekers in Hong Kong, independently of the Hong Kong government. If a person is recognised as a refugee, it means it is accepted that, if repatriated, that person will be open to a real risk of persecution. In such circumstances, it is the practice of the Director of Immigration not to repatriate that person, but to afford them temporary refuge until the UNHCR is able to settle that person elsewhere in the world. It has been accepted throughout the C proceedings that the Director had in fact never returned a recognised refugee to a country where there was a real risk they would be persecuted. As such it was contended by the Appellant in this case that this inevitable practice on the part of the Director constitutes a de facto recognition of the principle of non-refoulement as it has matured into a rule of customary international law. The Director, however, did not acknowledge any formal legal obligation under the rule of international law and states that he is merely exercising his discretion under the Immigration Ordinance, Cap. 115. The lower courts in the C case had held that while non-refoulement is a principle of CIL they have stated that it has not been incorporated into domestic law in part because the Immigration Ordinance grants the Director ‘unfettered discretion.’

The C case

The appellants accepted that as the Convention had not been extended to the HKSAR, Article 33 had no direct application. However, they contended, with the support of the intervener, that the principle of non-refoulement has become a rule of CIL as well as a peremptory norm, and as such, has become part of the common law of HKSAR. They also contended, again with UNHCR’s support, that to give effect to such CIL, HKSAR should make its own RSD decisions, and that the Director must not return any refugee claimant without appropriate enquiry into their non-refoulement claims.

The basic facts behind this application are that the six applicants in the case arrived in Hong Kong from Africa and South Asia. All applicants claimed to be refugees on the basis that each had a well-founded fear of persecution as set out in the Refugee Convention. Their refugee claims were rejected by UNHCR at first instance and their appeals dismissed under UNHCR’s appeal procedure. The applicants then sought judicial review of the Director’s decision to have them removed from Hong Kong after this rejection. They have sought a number of declarations in their application for judicial review, with the questions now before the Court of Final Appeal framed slightly differently than the questions before the Court of First Instance.

In the Court of First Instance the Applicants sought a declaration firstly in respect of the definition of a refugee under CIL and the minimum protection against non-refoulement; secondly, on the status of the principle of non-refoulement as a peremptory norm or jus cogens under CIL, forming part of the common law of the HKSAR; thirdly, on the duty of the Director of Immigration to carry out an independent inquiry into the status of refugee claimants entitled not to be refouled in accordance with the highest standards of fairness, before deciding whether they should be removed to a place where they feared persecution; and fourthly, in the alternative to the third declaration, they sought a declaration on the non-delegable duty of the Director to carry out an independent inquiry in accordance with the highest standards of fairness into the existence of humanitarian grounds advanced against removal, before deciding whether the persons advancing such grounds should be removed to a place where they feared persecution.

In 2008, Hartman J. in the Court of First Instance dismissed the application for judicial review. Kelley Loper, Deputy Director of the Centre for Comparative and Public Law (CCPL) at The University of Hong Kong, has further detail on the first instance decision and also sets out refugee developments in general in an article entitled ‘Human Rights, Non-Refoulement and the Protection of Refugees in Hong Kong’. In 2011 the Court of Appeal also dismissed the appeal. In dismissing the appeals the Court of Appeal stated the following:

1. The concept of non-refoulement of refugees had developed into a rule of CIL but had not attained the status of a peremptory norm.

2. The HKSAR Government did not have the capacity in its own right to raise objections as a persistent objector to dissociate itself from the development of a rule of CIL.

3. The Immigration Ordinance showed a ‘clear legislative intent’ to give the Director of Immigration unfettered discretionary powers, thereby overriding the operation of the rule of CIL of non-refoulement of refugees.

4. Where the Director of Immigration decided not to remove a UNHCR recognised refugee that decision had not created a de facto recognition of any legal obligation as it had been done on individual humanitarian grounds.

5. There is no obligation on the Director to undertake refugee status determination.

Arguments in the Court of Final Appeal

Michael Fordham QC, counsel for the Appellants, argued again that the Director has as a matter of practice exercised his discretion such that Hong Kong had de facto recognised the concept of non-refoulement of refugees. In his arguments he made extensive reference to the case of R (European Roma Rights Centre & Ors) v Immigration Officer at Prague Airport & Anor (United Nations High Commissioner for Refugees intervening) [2005] 2 AC 1 in addition to the Hong Kong case of Lee Bun & Anor v Director of Immigration [1990] 2 HKLR 466; [1990] HKCU 414 (which was decided before the Hong Kong Bill of Rights was enacted in June 1991). Counsel also utilised the New Zealand case of Zaoui v Attorney General (No 2) [2005] 1 NZLR 690 and Her Majesty’s Treasurer v Mohammed Jabar Ahmed & Ors [2010] UKSC 2 in his arguments. Lauterpacht and Bethlehem’s ‘The Scope and Content of the Principle of Non-refoulement’ was cited also. At paragraph 253 this document states that:

No person shall be rejected, returned, or expelled in any manner whatever where this would compel him or her to remain in or return to a territory where substantial grounds can be shown for believing that he or she would face a real risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment.

Of particular note was that the Appellants complained that the screening process conducted by the UNHCR is inadequate. Many legal aid lawyers’ working in the UNHCR RSD system will have experienced some difficulties in areas of this process. This includes problematic interviews, sub-standard interpretation, insufficient (if any) access to evidence or reasoning for decisions in some jurisdictions, the lack of an independent appeal, and the lack of the ability of lawyers or caseworkers in some jurisdictions, to attend interviews, and in others, to intervene, except on very limited grounds.[1] The strongest argument put forward in this respect by the Appellants was that UNHCR determinations are immune from judicial scrutiny which was accepted by counsel for UNHCR. UNHCR, acting as an intervener in the case despite HKSAR government objections, stated that the principle of non-refoulement is ‘beyond doubt’ CIL. Gerard McCoy SC, acting for UNHCR, stated that it is at a minimum a principle of CIL and that the idea that the Asian region or Hong Kong could opt out of this fundamental cornerstone was inconceivable. He further stated that UNHCR would reserve the right to argue that the principle was peremptory.

One argument made by the respondent was that there was a danger of requiring HKSAR to conduct RSD in that UNHCR might then not assist a person screened under such circumstances to settle elsewhere, with the result that HKSAR would be forced to allow these refugees to settle in Hong Kong. UNHCR was quick to dismiss such an argument and stated that given its mandate to assist established refugees, would continue to help them to settle in a safe country.

In its judgment the Court of Final Appeal again avoided the key issue as to whether non-refoulement is a principle of CIL, opting for the narrow interpretation based on the Prabakar case, which originally paved the way for a government led torture screening mechanism. The issue in Prabakar was, in determining whether or not a person faced a well-founded risk of torture in the event of removal to the putative country of torture, whether the Secretary for Security could rely solely on a determination by UNHCR which had rejected a claim to refugee status by that person. The court held that the Director could not do so. Li CJ stated that:

The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560D-G.

Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

In addition to that, it was for the Secretary to assess the materials and to come to an independent judgment:

Having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met. R v Home Secretary, ex p Bugdaycay [1987] 1 AC 514 at p.531 E-G. If the courts decide that they have not been met, the determination will be held to have been made unlawfully.

Counsel for the state also expressed concern that:

To institute an RSD mechanism in Hong Kong will likely attract more economic migrants to Hong Kong in the hope of possible changes in the Government’s asylum policy.

However, the court noted that it was only concerned with potentially returning persons to countries where they have a well-founded fear of persecution and that nothing in their judgment calls into question the Government’s policy not to grant asylum. In any event, the court stated at paragraph 51 that the ‘rule of law has real consequences and effect must be given to them.’ While the court agreed that the Director is entitled to give weight to a RSD by UNHCR, it was essential that the determination must be made by the Director and his duly authorised officers and that the determination must satisfy the high standards of fairness require. At paragraph 65 the court stated that ‘UNHCR’s immunity from legal process in regard to its official functions puts its refugee status determinations beyond the reach of judicial review. Even so, the government says that since the UNHCR’s refugee status determination in respect of each appellant is adverse to him, the way is now legally open to return each of them. No, it is not.’

Thus the court was of the view that, given it is the practice of the Director, when deciding whether or not to exercise his power under the Immigration Ordinance to remove a refugee claimant to the country of putative persecution, to have regard to humanitarian considerations, and that whether such claim is well-founded, is a relevant humanitarian consideration, the Director must determine whether the claim is well-founded. Moreover, any such determination must satisfy the high standards of fairness required having regard to the gravity of the consequence of the determination. In light of that finding the Court found it unnecessary to decide on the question of whether Article 33 had become a rule of CIL, but not a peremptory norm, and expressed no view on any of the issues raised in respect of it.

Where to now: a unified protection system?  

On delivering their judgement the Court invited the parties to the case to agree a draft order for the Court’s approval within 14 days of the judgment. The parties failed to agree a draft order by that date and have been at liberty to submit their respective drafts from 10 days hence. It is understood that negotiations are currently on-going between the parties as to what shape the order will take. However it would appear prudent for the government to now finally put a unified protection system in place. There are many potential benefits to such a process both to asylum seekers and the government in terms of costs effectiveness. Under the current system in addition to applying under the UNHCR RSD system, many asylum seekers also seek relief under the Convention Against Torture (CAT), which Hong Kong has ratified. This dual system adds to the length of time it takes for a client to be processed. For asylum seekers, many of whom have undergone terrible trauma before they arrived in Hong Kong, it means years of living in uncertainty. For the government, it means potential for abuse by those who are not genuinely seeking asylum as they can linger in the system for a number of years. I would argue that such a protection system should include:

·   A unified protection procedure

·   Clear, high-quality and transparent decision-making by qualified person

·   Access to legal representation by lawyers who are adequately trained in human rights and refugee law

·   Humane living conditions

·   Care for unaccompanied minors

·   Special consideration for the needs of vulnerable individuals and groups

In terms of support from the legal community, the Hong Kong Law Society and Bar Association have called on the HKSAR Administration to put in place a comprehensive legislative framework to ensure high standards of fairness for screening claimants under CAT and for determination of the refugee status of asylum seekers since they published a joint position paper on the ‘Framework for Convention Against Torture Claimants and Asylum Seekers’ in 2009. This position was recently cemented in statements by the Bar Association and the Law Society in the aftermath of Ubamaka Edward Wilson v. The Secretary for Security published in February 2013. In addition HKRAC and other NGOs working on behalf of refugees in Hong Kong have long advocated for the creation of a single, government led unified mechanism to process both refugee status determination and torture claims. This type of system was noted by the Court of Final appeal at paragraph 50 to ‘merit(s) careful consideration.’ It is unknown at present what role UNHCR will play in any future government led RSD process. Given that the judgement only deals with the issue of non-refoulement and not resettlement (or the rights associated with) it is assumed that UNHCR will have to remain in the jurisdiction in some capacity.

If a unified system is put in place it must be noted that questions have been raised about the adequacy of the existing government led screening system. While the government has rejected that they run an ‘effective 0% recognition rate’ it must be noted that out of more than 12,000 torture claims received by the government since the CAT was applied in Hong Kong in 1992, only five have ever been accepted, four of which were recognised in the last month. All five have been since the implementation of an enhanced mechanism implemented in December 2009 and from 3,110 claims decided. 4,348 cases remain to be decided.

In order to reform the system, the government should first review the adequacy of the current system for determining CAT claims. Hong Kong now has an opportunity to achieve a reform of the protection system which is human rights-centred and which upholds the rule of law. It is argued that a protection system that embodies the principles of efficiency, justice, and transparency as well as representing value for money would ensure that Hong Kong met its human rights obligations while protecting some of the most vulnerable in society.

[1] For further information on difficulties in the UNHCR RSD process see Kagan, ‘The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination’, IJRL Vol. 18 and Alexander, ‘Refugee Status Determination Conducted by UNHCR’, IJRL Vol. 11 No. 2.

Psychosocial well-being within refugee education in Cairo

Sarah Hodgson  managed the psychosocial team at Africa and Middle East Refugee Assistance (AMERA), offering basic counselling and advocacy to access services for refugees with acute psychological, social and medical needs. She now teaches at the American University in Cairo’s Centre for Migration and Refugee Studies (CMRS).

Children and young people around the world rely upon their families and communities to learn and develop.[1] When forced to flee, traditional support systems are often ruptured or altered, creating challenges for social stability and education. From the perspective of teachers working in refugee schools in Cairo, this article offers a brief overview of the psychosocial effects on students forced to migrate and what can be done to promote well-being and meaningful learning in refugee schools.

It is well documented that refugee children can benefit from attending school to re-establish a routine and a sense of normalcy, make new friends, and integrate into the host community, which equips young people with the knowledge and skills for their futures, whether in the host community, country of origin or a third country.[2] However, what if the host community and school environment present challenges that hinder or even prevent learning? With this question in mind, a workshop was designed to explore issues and find solutions with teachers to better enable learning.

Cairo, a city with an estimated population of 21 million, is the fifth largest urban refugee population in the world, hosting 48,000 registered refugees and anywhere between 500,000 and 3 million forced migrants.[3] With 52% of Egyptians living on less than two dollars a day, ongoing political instability and a faltering economy, Egyptian and refugee communities alike endure socioeconomic hardship.[4] The government of Egypt does not adjudicate refugee status determination and has made several reservations in its acceptance of the 1951 Convention relating to the Status of Refugees, including reservations which prevent refugees from accessing public relief such as free medical and educational services. Nevertheless, xenophobia, violence and overt racism towards sub-Saharan Africans are commonly reported.[5] These combined issues create a complex web of daily stressors for refugee students in Cairo.

The psychosocial approach offers a useful framework to understand how these stressors impact student learning. The term ‘psychosocial’ implies the relationship between the inner ‘psyche’ and the outer ‘social’ world. It explains the ‘close connection between psychological aspects of our experience (our thoughts, emotions and behaviour) and our wider social experience (our relationships, traditions and culture).’[6]

To explore the issues and solutions to psychosocial problems in Cairo’s refugee schools, Africa and Middle East Refugee Assistance (AMERA) designed a series of workshops entitled Psychosocial Well-being in the Classroom, which ran with four different groups from May to July 2012 and reached a total of 81 teachers from 14 of the 21 identified refugee schools in Cairo. The sessions were designed to be participatory as per Paulo Freire’s popular education approach. Freire identified and challenged the ‘banking method’ of education, wherein knowledge is imparted by teachers to students. Instead, recognising the importance of participatory activities, the Freirean approach actively involves everyone in the learning process. Using role-play, group work and open discussion, the workshop aimed to elicit information and organise a sharing of knowledge.

The findings from these workshops, detailed below, reflect the psychosocial issues faced by a sample of refugee students in Cairo, excluding the recently arrived Syrian community. Running for only two hours, participants could not fully discuss the complexities, causes and solutions of psychosocial issues facing students. More time should have been provided for discussion, and further research is required to offer a comprehensive overview of the psychosocial issues facing children in refugee schools in Cairo.

Psychosocial issues in refugee schools

Participants mentioned the effects of forced migration on student learning throughout the workshops. The physical loss of ‘home’ manifests itself in a wide range of emotional, social and physical mal-effects among students. Research indicates that with involuntary migration often comes a loss or shift in social and cultural practice, sometimes changing power balances and traditional practices.[7] While certain segments of society might benefit from these shifts, social change can lead to conflict. Indeed, teachers reported a range of complications for refugee families such as parental favouritism, abusive relationships, and challenges that come with the continuation of certain traditions, particularly responses to pre-marital sex, female circumcision and inter-cultural marriages. Disputes, if unresolved, can result in ongoing disagreements and the breakdown of the family unit. Such instances of separation and cultural bereavement might contribute to the loneliness, low self-esteem, and depression reported by students.[8] These social phenomena are immensely concerning to teachers, who expressed often feeling overwhelmed by their inability to protect children in abusive situations. At the same time, it has been reported that teachers often are part of the problem, maintaining inappropriate and in some cases sexual relationships with students.

The poor urban environment presented a different set of issues. With limited access to clean running water due to homelessness or substandard housing, a number of students regularly arrive unwashed to class. This lack of hygiene presents not only immediate health concerns, but also potential social problems, namely bullying and rejection from peers. The combination of poor environmental conditions and lack of access to sanitation may determine other cited health issues such as anaemia, diarrhoea, headaches, TB, stomach complaints, toothache, and skin problems.

Within schools, due to limited community funds, classrooms are inappropriately equipped and often lack basic items such as white boards, desks, computers or books for students. Teachers worry about how to include all students in learning, particularly those with disabilities, no educational background or illiteracy. Wheelchair ramps, assistance for the partially sighted and additional support for students are therefore in demand, yet woefully absent from any of the participating schools.

Travelling the Cairo streets presents yet more issues: students can be subjected to racist slurs, discriminatory behaviour, physical and sexual abuse. In response, many experience a sense of rejection, despondency, inferiority and in some cases feelings of hatred towards Egyptians, the antithesis of the hoped-for integration with the host community. On a regular basis, students arrive to class highly frustrated, disenchanted, and subsequently argumentative. Teachers connected these emotions to a propensity for disobedience and occasionally violent behaviour in the classroom. Participants admitted to occasional use of corporal punishment to control disruptive behaviour. However, most viewed this as a negative coping response.

Some students become aware of the limited social opportunities for refugees in Cairo, with unemployment high, limited or no higher education options and diminished access to social services. These barriers all combine to heighten feelings of frustration and the desire to leave Egypt for a third country. The hope for resettlement also discourages some students from engaging at school, instead looking to pursue education overseas.

The advent of political and social change in Egypt since early 2011 brings increased insecurity and fear among refugee communities, triggering memories for some of their own experiences of conflict and persecution. The past and present layers of stress could contribute to the reported widespread lack of sleep that results in poor memory, limited concentration. and fatigue, which prevent learning. Lack of food further compounds this issue, with children frequently arriving to class hungry. Many receive only one meal per day, leading to cases of malnutrition and vitamin deficiency.

Finding solutions

In light of all of these issues, teachers set about finding solutions. Demonstrations using role-play showed techniques to address specific issues with students. All of the teachers advocated the use of strong listening skills, exploring problems and involving the children in finding a solution. In a practical sense this involved drawing the child away from the class, providing a space to explore the issues, advice giving and validation of emotion. Effectively, the teachers all employ the basic principles of psychological first aid:[9] Listen to the story, provide empathy, protect, give advice and information to prevent the problem from recurring, and connect to the child’s network to bolster support as needed. To address declines in student performance, some teachers visit caregivers at home to talk through issues in the hope of finding ways to enhance learning opportunities. Overall, teachers were experienced in managing psychosocial issues in the classroom. However, over-stretched resources currently prevent holistic support for all students.

A small number of teachers reported the presence of psychosocial workers, counsellors or pastors in their schools. The majority wanted permanent additional assistance for students. From the workshops, it emerged that while informal peer support is happening, there are no formal supervision spaces. Continual teacher training is necessary, especially around addressing issues that may infringe upon teacher belief structures and cultural background. Thus, introducing supervision and increased teacher regulation would ensure a higher standard of education and, most importantly, work to safeguard against abuse.

A group of teachers suggested that there should be more opportunities for students to participate in creative arts and sports. The therapeutic benefits of recreational activities were recognised and highly valued to counteract stress. To encourage the development of such activities, teachers suggested inter-school art and sport competitions. Participants also proposed the creation of school kitchens run by communities for subsidised, or ideally free, school meals for children.

While psychosocial issues detailed in this article are not exclusive to students in refugee schools, this overview indicates that students in Cairo are exposed to a wide range of complex, entrenched, and harmful circumstances. The aspiration that refugee education might establish normalcy, promote integration, and develop skills for refugee students in Cairo is far from realised. In fact, most refugee children in the 14 schools we interacted with are excluded from meaningful learning. Teachers are calling for increased resources and better systems to support schools. Education and psychosocial service providers in Cairo are thus encouraged to assist teachers and students to contend with the daily stress of life in Cairo in order to better enable students to excel. Failure to support these young people is more than a tremendous waste of potential, it denies future generations their right to education and well-being.

References

Crisp, J. (1999) Who has counted the refugees? UNHCR and the politics of numbers. New Issues in Refugee Research, UNHCR Working Paper 12, UNHCR.

Freire, P. (2000) Pedagogy of the Oppressed. New York: Continuum.

Johnson, G. A. (2012) Frozen words, memory and sexual violence amongst Sudanese refugee women in Cairo, UNHCR Research Paper 240, UNHCR.

Mann, G. (2004) Separated children, care & support in context in Boyden, J. & de Berry, J. (eds) Children & Youth on the Front Line, Ethnography, Armed Conflict and Displacement, (pp. 3-23). New York, Berghahn Books.

Nassar, H. (2008) Irregular migration in Egypt, Irregular Migration Series, CARIM Analytic and Synthethic Notes 2008/57.

REPSSI, 2010, Psychosocial wellbeing for all children, Mainstreaming psychosocial care and support, The REPSSI Psychosocial Wellbeing Series.

Save the Children (2008) Education in Emergencies, A toolkit for starting and managing a programme, London, Save the Children Fund.

Strang, A. B. & Ager, A. (2001) Building a conceptual framework for psychosocial intervention in complex emergencies: Reporting on the work of the psychosocial working group, Centre for International Health Studies Queen Margaret University College, Edinburgh.

Strang, A. B. & Ager, A. (2003) Psychosocial interventions: Some key issues facing practitioners, Intervention, Vol.1, No.3, pp: 02-12.

Summerfield, D. (2000) Education and debate, conflict and health, war and mental health: A brief overview, British Medical Journal, 321, pp.232-235

UNHCR (2012) UNHCR Egypt Fact Sheet, UNHCR.

US Dept for Education, (2008), Psychological First Aid for Students and Teachers, REMS Vol. 3:3.

Zohry, A. and Harrell-Bond, B. (2003) Contemporary Egyptian migration: An Overview of voluntary and forced migration American University Cairo, Forced Migration and Refugee Studies Programme working paper C3, December 2003.

––

[1] Mann, G. (2004) Separated children, care & support in context in Boyden, J. & de Berry, J. (eds) Children & Youth on the Front Line, Ethnography, Armed Conflict and Displacement, (pp. 3-23) New York, Berghahn Books

[2] Save the Children (2008) Education in Emergencies, A toolkit for starting and managing a programme, London, Save the Children Fund

 [3] The inaccuracy with which forced migrant population statistics are presented is given thorough review by Crisp, J. (1999) Who has counted the refugees? UNHCR and the politics of numbers. New Issues in Refugee Research, UNHCR Working Paper 12, UNHCR. 

For further reading on forced migrant populations in Egypt see Nassar, H. (2008) Irregular migration in Egypt, Irregular Migration Series, CARIM Analytic and Synthethic Notes 2008/57, UNHCR (2012) UNHCR Egypt Fact Sheet, UNHCR andZohry, A. and Harrell-Bond, B. (2003) Contemporary Egyptian migration: An Overview of voluntary and forced migration American University Cairo, Forced Migration and Refugee Studies Programme working paper C3, December 2003.

[4] Destremau. B, (2013) The Environment Times.

[5] Johnson, G. A. (2012) Frozen Words, memory and sexual violence amongst Sudanese refugee women in Cairo, Research Paper 240, UNHCR.

[6] Strang, A. B. & Ager, A. (2003) Psychosocial interventions: Some keys issues facing practitioners, Intervention, Vol.1, No.3, pp: 02-12.

 [7] Strang & Ager (2003)

[8] Summerfield, D. (2000) Education and debate, conflict and health, war and mental health: A brief overview, British Medical Journal, 321, pp.232-235.

[9] REPSSI, 2010, Psychosocial wellbeing for all children, Mainstreaming psychosocial care and support.

Sri Lanka: A contemporary case of paradoxes?

Dr. Helia Lopez Zarzosa asks if Sri Lanka is ready to receive returnees. Dr. Helia López, a sociologist, studied the post-repatriation experiences of Chilean refugees/exiles during the Pinochet dictatorship (1978-1990) and during ‘democracy’ (1990-2002).

Despite the end of the conflict between Sri Lankan government forces and the Liberation Tigers for Tamil Eelam (LTTE) in May 2009, post-conflict Sri Lanka presents a case of at least two paradoxes. The first paradox is related to the information provided by UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (UNHCR 2012). The Guidelines acknowledge that asylum seekers outnumber returnees. According to UNHCR, ‘[I]n 2011, Sri Lanka ranked as 12th highest source country of asylum seekers who claimed refuge in 44 industrialised countries, with 8,521 applications’ (UNHCR 2012: 6). Moreover, UNHCR’s Guidelines reveal that ‘[T]he interest of Sri Lankan refugees in voluntary repatriating continued to decline in 2012, with fewer than 1,300 individuals returning to the country through UNHCR’s facilitated return program from January to mid-December 2012.’ (UNHCR 2012: 7). A second paradox stems from the 2012 Global Peace Index (GPI). Among its ‘Key findings’, the island appears as ‘the bigger riser’ as it ‘experienced the greatest improvement in its overall peacefulness, following the ending of decades of civil war.’ (GPI 2012: 7). However, news of deported asylum seekers from Britain alleging that on their return they had been tortured and raped by Sri Lankan security services (Malik 2013), and the recently published Human Right’s Watch Report (2013), substantiating these allegations, highlight human rights abuses and the lack of security in contemporary Sri Lanka. Considering that ‘[T]he GPI comprises 23 indicators measuring the absence of violence or fear of violence’ (GPI 2012: 10), how can this second paradox be accounted for?

This contribution aims at exploring these paradoxes and examines their implications. It argues that in a post-conflict political scenario still tarnished by a poor human rights record and with a legacy of unsustainable repatriations, Sri Lanka is still not ready to receive returnees. Moreover, these political inconsistencies are giving way to a new type of forced migrant masked as ‘new’ asylum seeker, or as the International Organisation for Migration (IOM) stated in the case of Sri Lanka, ‘economic migrants’ and not refugees’ (March 2012).

To explore the paradoxes highlighted above and the reason and nature of the current asylum applications from Sri Lanka – which some view as mixed migration flows – and lack of current repatriation, two scenarios need to be explored. First, the existing peace and security conditions and the use of sexual violence in that context. Second, the legacy of Sri Lanka’s historical unsustainable repatriations.

To start with and as noted in the introduction, in the 2012 Global Peace Index (GPI) published by the Institute for Economics and Peace, Sri Lanka appears as ‘the bigger riser, leaping nearly 30 places.’ According to GPI, in 2011 Sri Lanka ranked 126th whereas in 2012 it leaped to 103rd (GPI 2012: 29). Does this mean that the peace and security conditions in Sri Lanka allow for refugees to return ‘home’? Compelling evidence suggests otherwise. Reports such as those of Minority Rights Group International (2011), Amnesty International, and the recent one by Human Rights Watch (2013) offer clear evidence of the persistence of human rights violations in Sri Lanka.

Furthermore, recent publications (Suryanarayan 2011) have reported that because of the continuing centralisation of power, political stability in Sri Lanka is still fragile. The continuing militarisation in the Northern Province and the politicisation of the mostly Sinhalese armed forces with a concentration of political and military power leave little doubt of the disadvantage of the Tamils in the North who, according to Catholic voices (Mangalarajah 2013 p. 6), are kept in a state of ‘enforced rehabilitation.’ They have also denounced the Sri Lankan government’s lack of interest in peace and reconciliation – in my view, two of the pillars of a genuine process of democratisation and in turn of post-conflict reintegration and reconstruction.

Equal to the predicament of the progressive sector of the Chilean Catholic Chuch during the first ten years of the Pinochet dictatorship, Sri Lankan Catholic priests have been harassed.[1] ‘Parish Priests in the Roman Catholic Churches in the Wanni area have been approached by the Security Forces in the respective areas and were asked to submit their ‘year plan’ for 2013 consisting of all the functions and liturgical celebrations, feasts, etc. to be celebrated throughout the year’ (Mangalarajah 2013: 6). This means that this sector of the Catholic Church – that is speaking for the voiceless and vulnerable in Sri Lanka – is confronting a powerful militarised state and in the process, risking, as in the case of Chile, harassment and obstinate pressure. The Chilean case provides evidence that from relentless harassment and pressure it is a short step to repression against religious and lay people (López Zarzosa 2011).

Indeed, there is no doubt that since the inception of the nation-building process (1948 onwards), peace and security have been major issues in Sri Lanka that until today have included issues around ethnic markers such as the official language.[2] The island has been the centre of ethnic tensions between the Sinhalese majority and the Tamil and Muslim minorities, and particularly between the former two. This, according to Hasbullah (2004: 224), ‘was the beginning of the present situation.’ Yet, it was not until the July 1983 pogrom that a protracted armed conflict between the Sinhala governmental military forces and the separatist Liberation Tigers for Tamil Eelam (LTTE) began. The Muslim minority was ‘in between’ these two forces and became the victim of LTTE imposed forcible expulsion, displacement and refugeehood. In their predicament, ‘they lost everything but their lives’ (Hasbullah 2004: 228).[3]

Since the 1983 pogrom and the 2009 end of conflict, Sri Lanka’s historical and political developments have been characterised by extreme violence, absolute disrespect for human rights, displacement and refugeehood. I argue that this did not finish with the ‘end of conflict’ in 2009. In fact, it has continued. The legacy of a highly militarised and repressive state is proving to be enduring. Despite statements such as: ‘The military presence in the North has been drastically reduced. The claim of militarisation is only an academic theme’ (Kolappan 2012),[4], demilitarisation, particularly in the North and East, has not even been debated (Subramanian 2012). National security remains paramount. Refusal to demilitarise is also proving that democratic civilian participation in governance – another crucial element for democratisation – is non-existent.

Another issue that has continued and has only recently made headlines in the West, is that of sexual violence. Rape and other forms of sexual violence against Tamil men and women suspected of being members or supporters of the LTTE (including returnees) by the security forces are now in the open. Despite the ‘end of conflict’ in 2009, Human Rights Watch (2013) has been able to document such abuses over the last six years. This further evidence suggests that, despite the ‘end of conflict,’ Sri Lanka is remote from any process of democratisation. However, this requires a more careful and nuanced account.

It is now commonplace to state that sexual and gender-based violence is used as a weapon of war. Yet, this is usually related to women and girls.[5] In my study on Chilean voluntary repatriation I discuss the issue of sexual violence with a gender lens. Sexual violence and rape are not only used to discourage political involvement – in this case with the LTTE – as the Human Rights Watch Report (2013) argues. In a still highly militarised scenario, sexual violence is used to annihilate the ‘enemy’ through means other than military.

Masculinity and heroism are enhanced through militarism and war. However, in 2009 the LTTE military had been defeated. They lost their political and military agency. Any sign of recuperating it has to be eradicated. The ‘enemy’ has to be re-defeated and another weapon of war continues to be used: sexual violence. In this context, rape acquires a powerful symbolic meaning of political extermination. It becomes a political weapon of social control and power articulated by a disciplinary gender ideology that reinforces state power.[6] Women are raped as a means to damage men’s honour, to destroy his place in society through the rape of the figure of mother-wife. Their bodies are occupied territories, humiliated and discarded by the victors – in this case the Sinhalese army.

In a nationalist scenario, women’s rape also mean the violation of any pre-existing nation-woman construction. Conversely, and as my study shows, the purpose of sexual humiliation against men was not only to discipline leftist men but also to annihilate masculine self-respect and ‘honour’ and to achieve the total degradation of the political or religious man. When imprisoned they were symbolically positioned as homosexuals. This is nothing other than the emasculation of the male ‘enemy.’

The above discussion is showing that there have been no fundamental changes in the security circumstances that led to the flight of Sri Lankan refugees and less so of absolute safety if we want to use UNHCR’s (1985) preferred term. Are, therefore, the current peace, security and human rights conditions ‘pushing’ factors for the large number of asylum seekers from Sri Lanka and a deterrent for repatriation?

This question leads to the second paradox related to the ‘end of conflict.’ UNHCR’s Guidelines (2012: 6) shows that ‘Despite the end of hostilities in May 2009, Sri Lankans who seek asylum abroad continue to outnumber the Sri Lankan refugees who opt for voluntary repatriation.’ Moreover, the report reveals that ‘[T]he interest of Sri Lankan refugees in voluntarily repatriating continued to decline in 2012, with fewer than 1,300 individuals returning to the country through UNHCR’s facilitated return program from January to mid-December 2012’ (UNHCR 2012: 7). Even ‘the number of spontaneous refugee returnees who approached UNHCR in field locations has reduced by half compared to 2011’ (ibid).

A key question emerges here: What is pushing large numbers of Sri Lankans to seek asylum compared to the number of returning refugees despite the ‘end of hostilities’ in 2009? Considering that immigration and asylum laws have restricted opportunities for asylum seekers to apply for protection and assistance within both Europe (Loescher 2001) and to some extent in the Global South, what is this fact revealing?

In order to answer this question we should not depart from the past. I argue that amongst those seeking asylum there are a considerable number of first and second-generation failed returnees and asylum seekers. Sri Lanka has had at least three experiences of repatriations (1987-1990, 1992 during inconclusive peace talks, and after the cease-fire accord in 2002), yet none of these have been fully ‘voluntary’ nor absolutely ‘safe’. These repatriations have taken place either under conflict (Cuny and Cuny 1992) or at best under quasi-conflict conditions. In these cases, safety, livelihoods, and peace were at stake. Despite UNHCR’s (1988; 1989) Special Programmes of Limited Assistance to Returnees efforts,[7] these repatriations (both ‘spontaneous’ and assisted) were unsustainable.

Hence, the paradoxes highlighted above could also be explained by looking at the impact of past repatriations on ‘new’ asylum seeking and reluctance to repatriate. For example, of a total of 1,700 refugees who fled to India in 1995, the majority of them ‘were repatriated refugees from India from 1992…’ and ‘they had little idea about the conditions to which they were returning. Many were given the false impression that they would be able to go back to their villages’ (Anonymous 1996). Others were refouled by the Indian government ‘in spite of the plea of many not to be sent back to a war zone’ (ibid).

This evidence points to the nature of the existing solutions to forced displacement, particularly voluntary repatriation and its ‘voluntariness’ and ‘safety’ preconditions. These two concepts have constituted the backbone of UNHCR’s voluntary repatriation policy since the mid-1980s.[8] However, in the Sri Lankan case, unsustainable repatriations have generated a ‘vintage,’ to use Kunz’s (1973: 137) term, of failed returnees that is not acknowledged in repatriation research.

Although interest in failed asylum seekers is emerging,[9] next to no research exists on actual failed returnees. Failed repatriation[10] has only been superficially acknowledged but not followed by scholars in its entire social and political dimensions. This is another category of forced migrants that should be studied. Coercing refugees to return by withdrawing food rations and stipends and also ‘announcing that any Tamil who would not register for repatriation would be treated as an illegal alien and deported’ (Loescher 2001: 255), or by the elaboration of ideological discourses of belonging, challenge the ‘voluntariness’ of voluntary repatriation and so its sustainability. Testimonies of Sri Lankan refugees being coerced to repatriate after the signing of the memorandum of understanding (MoU) between the Sri Lankan government and the LTTE on 24 February  2002 (Dasgupta 2003), leave little room for doubt of the importance of ‘voluntariness’ in repatriation. Repatriation lacking voluntariness and safety, let alone dignity, is doomed to failure.

Past unsustainable repatriations are giving way to a new type of forced migrants masked as ‘new’ asylum seekers, or, as the IOM stated ‘economic migrants’ and not refugees.’ This evidence bolsters the argument that among those seeking asylum there are a considerable number of first and second-generation failed returnees and asylum seekers. It is therefore in Sri Lanka’s displacement, refugee-hood and repatriation history that we can find some plausible answers to UNHCR’s difficulty in ‘ascertaining the exact reasons for these attempts to depart. The motives are speculated to be mixed in nature’ (UNHCR 2012: 6-7). And it is here that conceptualisations come to the fore.

The concept of ‘mixed migration’ is now accepted to refer to the complex motivations for leaving a home country and seeking asylum as well as referring to the multiplicity of migrating categories. It could be argued that one of the ‘advantages’ when compared to previous conceptualisations is that there are no boundaries between categories. But is this a dangerous ‘add migrants and stir’ concept? Does the concept ‘mixed migration’ homogenise migration to such an extent that it hinders rather than enhances the analytical use of categories and structural factors within it turning into a nebulous conceptual device with powerful policy and normative significance that admits different interpretations?

Research on failed asylum seeking has shown that people end up arrested, in detention centres and finally deported or as now known, ‘removed’ because they were ‘bogus’ and ‘undeserving’ (Sales 2002). Hence, there are now more labels than refugees (Zetter 2007) and the concept of mixed migration is not helping either analytical work or policy-making. An additional danger is seen in myriad dramatic cases of perilous forced migration (Lewa 2008, to name one report) in which people risk their lives in search of a state that could provide them with the protection of their basic needs as in the seminal formulation of Andrew Shacknove (1985). Yet, once again, as in the case of Sri Lankans heading for Australia in November 2012, they were categorised as ‘economic migrants’ and not refugees. Are we going round in confusing circles and in the process elaborating ad hoc concepts that do more harm than good?

Evidence-based research (López Zarzosa 2011) has shown that State protection of basic needs and safety is usually given by expelling states to one sector of the society. This research has shown that those loyal to the political, cultural, ideological and military agenda and apparatus of the ruling state enjoy a social contract that is denied to the ‘enemy’ sector of the society.[11] These, whom I call ‘nationals’, identify with a conception of nation/homeland that excludes its ‘enemy.’ In the case of multi-ethnic, multi-linguistic and multi-cultural Sri Lanka, conceptions of the nation is a complex issue.

Consequently, and despite the end of the conflict in 2009, the reinforced domination of the structural conditions that led to displacement has led to the outnumbering of asylum seekers when compared to repatriates. There is no need to limit the creation of refugees to a rampant conflict. After all, Kunz (1973) has noted that ‘anticipatory’ refugees flee before the conflict starts. If in this case, because the non-Sinhalese sector of Sri Lankan society still feels threatened and denied livelihoods and protection, there is no obligation for them to exercise their so-called ‘right to remain’.

It is time to rethink the constraints and challenges facing returnees to Sri Lanka – of which UNHCR (2012) is aware – and consider whether only safe and voluntary return can achieve sustainability. For this to occur the nature of the home state ‘welcoming’ returnees is paramount.[12] A state that still has long-standing issues such as: occupation of lands by the security forces, the allocation of lands in the North to Southerners, the existence of political prisoners, a nul commitment to peace and reconciliation, and the changing demography of the Tamil areas through systematic state-funded colonisation (Mangalarajah 2013: .2; 6), offers only the alternative of risking asylum seeking regardless of the costs involved or refusing repatriation. What is more, and as the President of the Commission for Justice & Peace of the Diocese of Jaffna Fr. Mangalarajah warned: ‘If the present situation continues we fear that it will be paving the way for another cycle of violence. The country cannot afford to pay such a heavy price as in the past’ (ibid: 6). If we want Sri Lanka to receive returnees sustainably, it is therefore imperative to listen to those voices and to go back at least to two of the core prerequisites of voluntary repatriation: voluntariness and safety. Dignity will be an outcome of this matrix.

In conclusion, this discussion suggests that Sri Lanka is still not ready to receive returnees. The current peace, security and human rights situation explored here does not show signs of a fundamental change. This means that the end of conflict in May 2009 has not led to a genuine process of democratisation peace and reconciliation. Instead, the continuation of repressive and exclusive practices are still the norm. Past unsustainable repatriations add a grim meaning to voluntary repatriation. When these two scenarios interact, the future of not only voluntary repatriation in Sri Lanka but also of those who are marginalised and ‘rehabilitated’ looks even more grim. Asylum seeking, though perilous and increasingly difficult, offers a desperate way out.

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References

Allen, T. and Morsink, H. 1994. ‘Introduction’. In Allen, T. and Morsink, H. (Eds.) When Refugees Go Home. African Experiences. Geneva: UNRISD; London: James Currey; Trenton: Africa World Press. Pp. 1-13.

Anonymous [1996] ‘Sri Lankan Tamil Refugees in India. A Journey Without End’ RSC/FST/FI-30 ANON (anonymous, date created: 01/01/1996, no numbered pages).

Corlett, D. 2005. Following Them Home. The Fate of Returned Asylum Seekers. Melbourne, Victoria: Black Inc. Agenda.

Cuny , F.C. and Cuny, C.R. 1992. ‘The Return of Tamil Refugees to Sri Lanka 1983 to 1989’ in Cuny, F.C. et al. Repatriation During Conflict in Africa and Asia. Dallas, Texas: Center for the Study of Societies in Crisis. Pp. 23-91.

Dasgupta, A. 2003. ‘Repatriation of Sri Lankan Refugees. Unfinished Tasks’ Economic and Political Weekly. Vol.38 No.24 June. pp. 2365-2367.

Global Peace Index (GPI) 2012. Vision of Humanity 2012 Global Peace Index: (GPI).

Hasbullah, S.H. 2004. ‘Justice for the Dispossessed: The Case of A Forgotten Minority in Sri Lanka’s Ethnic Conflict’ in Hasbullah, S.H. and Morrison, B. M. (Eds.) Sri Lankan Society in an Era of Globalization. Struggling to Create a New Social Order. New Delhi; London: Sage Publications. Pp.221-240.

Human Rights Watch (2013) ‘We Will Teach You a Lesson.’ Sexual Violence against Tamils by Sri Lankan Security Forces.’ February 2013.

Kolappan, B. (2012) ‘To return or not to return?’ The Hindu, CHENNAL, October 21, 2012.

Koser, K. 2001. International Organization for Migration (IOM) 2001 The Return and Reintegration of Rejected Asylum Seekers and Irregular Migrants. Geneva: International Organization for Migration (IOM) Migration Research Series N°4.

Krishna, S. 1999. Postcolonial Insecurities. India, Sri Lanka, and the Question of Nationhood. New Delhi: Oxford University Press.

Kunz, E.F. 1973. ‘The Refugee In Flight: Kinetic Models And Forms of Displacement’ International Migration Review 7(2):125-146. Summer.

Lewa, C. 2008. ‘Asia’s new boat people’ Forced Migration Review, 30:40-42.

Loescher, G. 2001. The UNHCR and World Politics: A Perilous Path. Oxford: Oxford University Press.

López Zarzosa, H. 2011. Chilean Voluntary Repatriation, 1978-2002: How Voluntary, How Gendered and How Classed? PhD Thesis, Oxford Brookes University. August.

Malik, S. (2013) ‘Sri Lankans expelled from UK allege torture after deportation to Colombo’ The Guardian, Tuesday 12 February 2013.

Mangalarajah, Fr. S.V.B. (2013) [President Commission for Justice & Peace of the Catholic Diocese of Jaffna, Sri Lanka]. Letter addressed to The President & Members of the Catholic Bishops’ Conference of Sri Lanka. Dated 10.01.2013.

March, S. (2012) ‘Sri Lankans heading to Australia ‘economic migrants’, not refugees: IOM’ Australia Network News. Updated Wed, Nov 7, 2012.

Minority Rights Group International (2011) No war, no peace: the denial of minority rights and justice in Sri Lanka. 19 January 2011.

Sales, R. 2002. ‘The deserving, and the undeserving? Refugees, asylum seekers and welfare in Britain’ Critical Social Policy 22(3):456-478.

Shaknove, A. E. 1985. ‘Who is a Refugee?’ Ethics 95: 274-284.

Stirrat, R.L. 1992. Power and Religiosity in a Post-Colonial Setting. Sinhala Catholics in Contemporary Sri Lanka.Cambridge: Cambridge University Press.

Subramanian, N. (2012) ‘Sri Lankan Army still has vast presence in North and East’, The Hindu CHENNAL, September 19, 2012.

Suryanarayan, V. 2011.‘Sri Lanka: Post War Problems’ in Kumar S. (Ed.) India’s National Security. Annual Review 2010. London; New York; New Delhi: Routledge. Pp.182-200.

UNHCR (1985) Conclusion No. 40 (XXXVI) on Voluntary Repatriation. UNHCR Executive Committee 1985. Voluntary Repatriation. Executive Committee of the High Commissioner’s Programme. Thirty-sixth session. Sub-Committee of the Whole on International Protection. EC/SCP/41. 1 August 1985.

UNHCR (1988) UNHCR Special Programme Of Limited Assistance to Returnees in Sri Lanka. Office of the United Nations High Commissioner for Refugees in Sri Lanka. November. Information Note II. [RSP Documentation Centre]

UNHCR (1989) UNHCR Special Programme Of Limited Assistance to Returnees in Sri Lanka. Office of the United Nations High Commissioner for Refugees in Sri Lanka. November. Information Note III. [RSP Documentation Centre].

UNHCR (2012) UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04.

Waylen, G. 1996. Gender in Third World Politics. Buckingham: Open University Press.

Zetter, R. 2007 ‘More Labels, Fewer Refugees: Remaking the Refugee Label in an Era of Globalization’. Journal of Refugee Studies 20(2):172-191.

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[1] The Catholic Church is not a homogeneous institution in Sri Lanka however. In her book Still Counting the Dead (2012), Frances Harrison acknowledges the ethnic divide in the Sri Lankan Catholic Church. This divide impacts on the Church’s approach to post-conflict resolutions. See section ‘The Nun’ pp. 92-113. For a full discussion of Sinhala Catholics, see Stirrat 1992.

[2] An account of the relationship between nation-building and the emergence of ethnic conflict is found in Krishna 1999.

[3] Although the author uses the term refugees for internally displaced people (IDPs), Hasbullah provides insights and evidence on the situation of Northern Muslims.

[4] Deputy High Commissioner R.K.M.A. Rajakaruna in Kolappan 2012.

[5] See for example ‘Sexual violence: weapon of war, impediment to peace’ Forced Migration Review, issue 27, January 2007. In this special issue of FMR, only one article relates to men and boys: ‘Sexual violence against men and boys’ by Wynne Russell, pp.22-23.

[6] On this view of gender ideology see Georgina Waylen 1996.

[7] In the 1988 efforts and because of military disturbances, many families could not return to their places of origin and were relocated in refugee camps such as Clappenberg in Trincomalee (UNHCR 1988).

[8] Despite its importance and applicability for this analysis, the additional concept of ‘dignity’ will not be included here. This concept is related to the notion of human rights as in the UDHR and particularly ‘in the form of the human right to return in safety and dignity – a right to be asserted and implemented’ (Coles 1989 p. 162 in Allen and Morsink 1994 p. 3).

[9] For the return journey of repatriated asylum seekers from Australia see Corlett 2005. For European governments’ policies aiming at the return and reintegration of rejected asylum seekers see Koser 2001. As the tendency of policy-related documentation is to portray the positiveness of schemes such as IOM Assisted Voluntary Return and Reintegration (AVRR), more non-policy research is needed.

[10] Failed repatriation refers to the economic, political, social, and cultural unsustainability of return that is followed by re-emigration either to the host country or a different one. For a systematic analytical discussion of what makes successful and failed voluntary repatriation see López Zarzosa, H. 2011.

[11] An ‘enemy’ could be someone of a distinct race/ethnic group, religion, nationality, member of a particular political party/organisation or ideology.

[12] For an analysis of the importance of the nature of the home state in voluntary repatriation see López Zarzosa, H. 2011.

A future without immigration detention?

This is the text of a talk given by Lisa Matthews of the National Coalition of Anti-Deportation Campaigns (NCADC) at the 2013 SOAS Detainee Support conference on 27 April 2013. Reprinted with permission.

The panel was asked to consider:

What are the strategic opportunities and risks of advocating for ‘alternatives’ to detention? Should we be promoting existing ‘alternatives’ such as bail, or case management programmes involving engagement with migrants?

Immigration detention is wrong, and harmful. Detention destroys communities, and robs people of their lives, dignity and spirit.

We – those of us opposed to detention – are clear on this. We are clear it is morally wrong. We are clear it doesn’t work – it doesn’t act as a ‘deterrent’ to migrants coming to the UK, it doesn’t result in quick, efficient enforced removals of those the government have decided are undesirable. It costs huge amounts of money – it’s estimated that the UKBA spends some £110 per day or over £40,000 a year, per detainee.

We are clear the government locks migrants up to look ‘tough’ on immigration, to try and institutionalise the myth of difference between migrants and British citizens, to make it easier to hate migrants and to fear them and therefore to blame them for things that are wrong in the country.

We are clear that immigration detention must end, that all detention centres must close. But we are not clear how to get there.

This is why ‘alternatives’ to detention is such a prickly issue. If we are a long way from the end of detention altogether, what do we do in the meantime?

The International Detention Coalition, who have undertaken considerable worldwide research on the issue of alternatives to detention, define alternatives as: ‘any legislation, policy or practice that allows for asylum seekers, refugees and migrants to reside in the community with freedom of movement while their migration status is being resolved or while they await deportation or removal from the country’.

These might be release provisions, community models, or conditional release. The IDC has found, from surveying models of alternatives in different countries, that the benefits of alternatives can easily be evidenced – benefits for migrants, the government, for society. There are high rates of compliance (with the immigration system); they are cheaper than detention; human rights are protected; community integration for approved cases is improved.  These ‘benefits’ are problematic for those of us who believe that immigration detention should never be used, however. Alternatives to detention shouldn’t just be a way of enforcement working better, but a step towards the end of enforcement altogether.

How can we use alternatives to detention strategically?

Alternatives to detention are an opportunity to start a discussion, to prove that detention doesn’t work, and that community engagement, with migrants, is the real alternative. For example, in the Netherlands, civil society groups came together under the coalition ‘No child in detention’. On 29 January 2008 the government publicised a new policy regarding the immigration detention of children and their families creating more alternative accommodation for them, and the improvement of detention conditions. After repeated calls by the coalition this was expanded to unaccompanied minors. In 2011, the Minister started investigating alternatives to detention for adults.

I am hesitant to use the ending of child detention as an example, because of the troubled history of that campaign in the UK – where the ‘victory’ of ending child detention has been co-opted by politicians, leading to the fracturing of the movement. Nevertheless, the Netherlands example still shows that starting on a small scale, with one group, can lead to an examination of how to end detention for everyone.

Decision-makers, politicians – despite the tough act – are scared by the issue of immigration and even more so by enforcement. If they can see that resolving cases in the community works as in the example in the Netherlands, they are emboldened to tackle detention more broadly.

And it’s not just decision-makers. Using evidence of successful examples of community case management models as alternatives to detention is an opportunity to have a discussion about what detention is like. Most people have no idea, and may assume that detention is inevitable or justified. If you want to convince the public (whose support can provide a climate for politicians to make more positive policy on immigration) that detention isn’t the answer, you need to be able to suggest what the solution could be instead.

And we can never forget, when talking about alternatives to detention and the detention system, that it’s about detainees, it’s about people. While we debate the opportunities and risks of detention alternatives – a necessary and vital debate – the daily reality is that alternatives to detention get people out of immigration removal centres, out of the ‘second torture’ of detention.

Risks of advocating for alternatives

With that reality check then, of recognising that for people in detention, alternatives are currently the only way they will be released unless they are granted leave to remain; no-one who cares about the well-being of others would deny the importance of that. But what are the risks of advocating for alternatives?

Improvements normalise a system we want to bring down – it is reform, not revolution. This is a tension in anti-enforcement advocacy in general – in the US, there are non-enforcement zones where migrants can’t be picked up and detained, including schools and children’s play-parks. Should we call for this in the UK, or does the shocking detention of families through dawn-raids and snatching kids from schools reveal how despicable enforcement is? A necessary truth to end enforcement? The same can be said by improving the behaviour of escort staff on removals – of course we want less terror, less assaults, but making enforcement less brutal is not our ultimate goal and can make the ending of enforcement harder to attain. These extremes of inhumanity shock us, and without that shock the general public may continue to accept a system of detention and forced removal that is by its very existence, violence against the individual and their freedom. By removing its excesses, do you provide life-support to the system?

The alternatives themselves leave a lot to be desired. Tagging and reporting are merely extensions of the deprivation of liberty beyond the walls of the prison. The very fact that we, almost unquestioningly, use the term ‘bail’ from the criminal justice system for a process that involves many individuals who have committed no crime at all, shows how even if someone is liberated from the physical detention of an immigration removal centre, they are not free from the language of detention and criminality.

Evidence on alternatives shows that there is increased sign-up for voluntary return (or more accurately, as Jerome has pointed out, ‘assisted return’) for refused cases – this is better than people signing up for ‘voluntary’ return because they cannot bear the mental torture of detention any longer – as we too often hear from detainees – but we must ensure that return is a choice made by an individual who is empowered and free to make a meaningful, safe choice. The use of the term ‘alternatives’ to describe projects by UKBA to try and encourage more people to return has muddied the waters in the sector. Like destitution, alternatives could all too easily be used as a coercive strategy to make people despair, to make people leave by any means possible.

But detention is too big a crime to be ignored, and alternatives too important a strategy to shy away from.

Is advocating for alternatives to detention in conflict with principled opposition to border control? Yes. But even if you are against immigration control and believe there should be no borders, like NCADC, you can still believe that advocating alternatives to detention is the right thing to do. It’s the right thing to do because of the opportunities I’ve mentioned, and because it’s essential for detainees. But we must acknowledge that conflict, that tension, and must not cease our calls for the end of all immigration detention whilst pressing for more, and better, alternatives.

We must make sure the alternatives are better and that they are used: detention has become the default, rather than the presumption of liberty, as is enshrined in law. Alternatives are a transitional demand, temporary relief for people in detention while we work together to end detention entirely.

Alternatives can distract from the bigger picture – and to us the bigger picture isn’t making sure that the existing system, with its mechanism for release from detention, is operated properly; but bringing that system down.

Advocating for alternatives to detention must not soften our determination to shine a light on the darkest aspects of the immigration system, and our commitment to end the outrage that is immigration detention.

Resources & publications

‘Applying the ELAP process to asylum applications increases the overall grant rate of cases by seven percentage points and reduces the number of refusals against intake.’ - Evaluation of the Early Legal Advice Project. Mike Lane, Daniel Murray, Rajith Lakshman, Claire Devine and Andrew Zurawan, Home Office, 16 May 2013.

‘There needs to be greater awareness not only of the specific protection concerns relating to LGBTI individuals but also of related jurisprudence and guidance available for UN staff, partners, state authorities and decision-makers.’ - Forced Migration Review 42: Sexual orientation and gender identity and the protection of forced migrants. Refugee Studies Centre, University of Oxford, April 2013.

‘The conference brought together exciting new contributions from more than twenty leading specialists in the fields of IHL and refugee law to take stock of recent developments in law and practice, and to cultivate new approaches.’ - Conference report: Refuge from inhumanity: Enriching refugee protection standards through recourse to international humanitarian law. Jean-François Durieux and David Cantor, April 2013.

‘There has been little substantive change since the report of our first study was published in 2011: there is still a lack of consistency in every aspect of the hearing process including the approach of different judges, treatment of sureties, and procedures when there was a lack of legal representation.’ - Still a Travesty: Justice in Immigration Bail Hearings: Second report from the Bail Observation Project. Bill MacKeith and Bridget Walker, Campaign to Close Campsfield, 2013.

‘This review highlights the need for an oversight mechanism, which may restore public faith in Frontex to legitimately carry out its duties in manner conducive to EU core values.’ - Upholding the Legitimacy of Frontex: European Parliamentary Oversight. Aoife Spengeman, European Security Review: ISIS Europe, April 2013.

‘While the government is gradually integrating various militias into government security forces, it faces many obstacles and the progress is not advancing according to the expectations of the general population.’ - Operational Guidance Note Libya. UK Border Agency, May 2013.

‘Impunity remained a problem in Turkey. The government investigated reports of abuse by security forces, but the number of arrests and prosecutions was low and convictions remained rare, although the number increased from previous years.’ - Operational Guidance Note Turkey. UK Border Agency, May 2013.

‘Violent assaults against women, including serious sexual assault and rape, have surged in the vicinity of Tahrir Square in Cairo in recent months, reaching a peak in January 2013, during protests commemorating the second anniversary of the start of the 2011 uprising that ousted Hosni Mubarak.’ - Operational Guidance Note Egypt. UK Border Agency, May 2013.

‘While individuals and organizations may seek civil remedies for human rights violations, courts were susceptible to corruption, inefficiency, intimidation, and political tampering.’ - Operational Guidance Note Albania. UK Border Agency, May 2013.

‘Throughout the reporting period… both the government and the rebel forces resorted to human rights abuses and had been accused of wide-ranging violent activities. It is estimated that more than 13,000 people have died in the brutal conflict and that some 200,000 people have been internally displaced.’ - Nepal: International Covenant on Civil and Political Rights Shadow Report. INHURED International, May 2013.

‘Data disaggregated by gender and age over the three years show that women account for 68%, men for 17%, girls for 12% and boys for 3% of the total number of victims of trafficking in human beings. Women thus remain by far the largest group of victims over the three years.’ EUROSTAT Working Paper: Trafficking in human beings. European Commission, 2013.

‘The “invisibility” of sexual minority refugees and asylum seekers is a consequence of survival mechanisms adopted by this population in order to survive in homophobic and transphobic social, political, and cultural environments.’ – Invisible in the city: Protection gaps facing sexual minority refugees and asylum seekers in urban Ecuador, Ghana, Israel, and Kenya. Yiftach Millo for HIAS. Bureau of Population, Refugees and Migration of the U.S. Department of State, February 2013.

‘A recent study estimates that sexual orientation and gender identity applicants seeking asylum in the European Union numbers 8,450 annually’ – Nexus with a Convention ground: The particular social group and sexual minority refugees in Ireland and the United Kingdom. Samantha K. Arnold. Irish Law Journal. vol. 1 (2012).

‘Over the past decades millions of people have moved to the capital city in search of services and safety. However, the same logic of discrimination that forced them from their homes has been replicated in Khartoum: they have continued to be treated as second class citizens at best, and as non-citizens at worst.’ - The disappearance of Sudan? Life in Khartoum for citizens without rights. Lucy Hovil, International Refugee Rights Initiative, May 2013.

‘The U.K. House of Lords has granted asylum to gender persecution victims based on their membership in the particular social group of “women” in their home states, but the U.S. Supreme Court has not addressed this issue. The lower U.S. courts rarely recognize “women” as a particular social group; they either deny gender asylum claims or grant relief via a more narrowly defined particular social group.’ - Women as a Particular Social Group: A Comparative Assessment of Gender Asylum Claims in the United States and United Kingdom. Bethany Christa Lobo. Georgetown Immigration Law Review, vol. 26 (2012), p. 361.

Introducing the African Human Rights Case Law Analyser.

The Case Law Analyser is a multilingual, free-to-access collection of the human rights decisions of African supra-national mechanisms. It does not simply list decisions and instruments, but presents them as interacting and interrelated texts to facilitate cooperation and improve understanding.

An up-to-date research aid on the resettlement of refugees in Australia

Created by Klaus Neumann of the Swinbourne Institute for Social Research, this newly updated online resource lists relevant scholarship including books, articles, reports and Masters and doctoral theses about the resettlement of refugees in Australia.

MAY 2013

Country of Origin and Legal News

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Notes from the field: One country of origin expert’s experience