Appendices: Protecting Refugees
What compels someone to flee his/her home? Persecution-torture, harassment, sexual violence, detention, other violations of human rights and threats to a person's life or liberty-and the well-founded fear of persecution, will drive a person to leave family, friends and homeland to seek safety elsewhere. Persecution can occur during war or armed conflict; it can occur during a time of peace, as a deliberate policy of a State against individuals, a group or groups.
Those who flee their homes and seek refuge within the borders of their country of origin are known as internally displaced persons. Those who cross the border of their home country to seek refuge in another country may, after individually going through refugee status determination procedures, or, as a group, on the basis of their circumstances, be recognised as refugees.
Refugee flows are not created in a vacuum. Usually, there are indications that human rights violations are occurring or may soon occur in a country. NGO staff and others working in the country in question may note that the government does not protect certain individuals or that the country's media is being used to promote divisions within a population. There may be social unrest in the country that could lead to the detention of individuals or to armed conflict between groups. The government, itself, may be threatened by an external force, such as another government or an armed group that is not controlled by any State. In any and all of these circumstances, relief workers on the ground should be alert to the political and social climate in which they're operating.
Sometimes, concerted efforts at mediation are required to prevent tension from erupting into open conflict. NGOs can help initiate and support these mediation efforts.
When people flee persecution, they do so at great personal risk. Even as they are seeking refuge, they are often hounded by the fear that, if caught, they could face severe reprisals for trying to leave. These people often cannot leave the country through normal entry and exit points; their identities may be known to authorities at border checkpoints. So they must make their way through difficult or dangerous terrain or via clandestine transportation arrangements that always run the risk of being discovered and stopped. Sometimes, unscrupulous people take advantage of fleeing individuals by offering, in exchange for large sums of money up-front, transportation that never arrives. During the course of their flight, individuals face the threat of bandits, pirates and corrupt border guards. Sometimes they are assaulted, raped or even killed. Many times, those who are fleeing leave their families behind, hoping that if and when they acquire refugee status, their families can join them in a country of asylum. Often, they are alone and afraid and face an uncertain future.
Though there may be some safety in numbers, when masses of people flee war or conflict, they face many of the same dangers that individuals fleeing persecution confront. In fact, in circumstances of war or conflict, the rule of law is often non-existent; generalised violence makes the flight of even large numbers of people dangerous.
People must often travel long distances, through difficult terrain or across open seas, often in inadequate transport, to flee the country. Combined with harsh climates, these conditions can threaten the health of people in flight, especially children, the sick and the elderly. During flight, people can become separated from their families, increasing their vulnerability and, especially in the case of small children, causing serious trauma. Bandits and pirates can also threaten people, even if they are traveling in large groups. Sometimes, unscrupulous elements among those in flight may prey upon more vulnerable people-stealing their belongings or assaulting them-as they seek safety.
Article 31 of the 1951 Convention relating to the Status of Refugees says:
* The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
* The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
When a person enters another country and appeals to State authorities to provide refuge, he/she is known as an asylum seeker. But gaining entry into a country of asylum can be very difficult. Individuals may be turned away at the border if they do not have proper identification papers or travel documents. Corrupt guards at border posts may demand money-or, if the asylum seeker is a woman, sexual favours-before allowing entry.
Often, States have laws imposing time limits on how long after arrival in the country an asylum seeker can apply for asylum. If the asylum seeker fails to contact government authorities within that time limit, he/she risks possible deportation as an illegal alien.
In order to determine whether an asylum seeker is, in fact, a refugee according to the 1951 Refugee Convention or to other international (or national) human rights or humanitarian laws, governments set up refugee status determination procedures. It is important to remember, however, that a person is a refugee as soon as the criteria, as set forth in the 1951 Convention and other international, national, human rights or humanitarian laws, are fulfilled. This usually occurs before status is formally determined. Recognition of refugee status is therefore declaratory: it states the fact that the person is a refugee. In other words, a person does not become a refugee because of recognition, but is recognised because he/she is a refugee.
UNHCR advocates that governments adopt rapid, flexible and liberal procedures since it is often difficult for refugees to document and prove persecution. Sometimes, UNHCR conducts status determination procedures on behalf of governments: for example, when a State is not party to any international refugee treaty or when the national authorities ask for UNHCR's assistance. If a person seeks asylum in a State that has no refugee status determination procedures, UNHCR can conduct the procedures under its mandate to protect refugees. If the State concerned does not respond to UNHCR's advice, NGOs can help protect the asylum seeker in question by pressuring the Government to do so. This can be achieved through advocacy, representations to the concerned authorities and public information campaigns.
The refugee status determination procedure, whether conducted by State authorities or by UNHCR, involves a lengthy interview with the asylum applicant. Detailed information gathered during the interview, as well as information about the person's country of origin, is then assessed according to the criteria established in the 1951 Refugee Convention ("...a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion..."), other relevant regional conventions or declarations (such as the OAU Convention and the Cartagena Declaration) and the country's national legislation. If the person's case is judged to meet those criteria, he/she will then have the fact that he or she is a refugee legally recognised and be granted the rights accorded to refugees under the Refugee Convention and other human rights laws and treaties.
The Convention, however, also explicitly defines those who do not deserve international protection as refugees. These exclusion clauses define them as persons "with respect to whom there are serious reasons for considering that":
People are also not entitled to international protection as refugees if they benefit from the same rights and obligations as nationals of the country in which they have taken residence, or if they receive protection from UN agencies other than UNHCR. (Palestinians in Jordan, Lebanon, Egypt, Syria and Israeli-occupied territories, for example, are included in this latter clause since the United Nations Relief and Works Agency for Palestine Refugees in the Near East [UNRWA] was established to provide assistance to these refugees. However, if Palestinian refugees are outside the UNRWA area of operations, they fall within UNHCR's mandate, like any other refugees.)
Persons excluded from international protection are then no longer considered to be of concern to UNHCR as refugees. However, they may continue to be entitled to protection under the laws of the country of asylum and human rights laws.
In many countries, asylum seekers are kept in detention in prisons, closed camps or airport transit zones because of their illegal entry or presence in search of asylum. They are kept there until their status is resolved. Detention, which can last weeks, months or even years, is often used by States to address perceived abuses of the asylum system by bogus claimants. But it may also have the effect of deterring genuine asylum seekers from seeking asylum in these countries. In many instances, asylum seekers are not provided information about their rights in detention, are not allowed to seek legal advice, and are sometimes refused access-or permitted only restricted access-to UNHCR or concerned NGOs.
As a general rule, asylum seekers should not be detained. Seeking asylum is not a criminal offense; and freedom from arbitrary detention is a fundamental human right. If they are detained, asylum seekers have a right to know on what grounds they are being detained and they have a right to challenge the detention order.
There are several viable alternatives to detention, such as allowing asylum seekers to live in the community as long as they periodically report to State authorities, finding a guarantor who will vouch for the whereabouts of the asylum seeker and ensure his/her compliance with the State's status determination procedures, or setting bail for an asylum seeker. Whenever possible, these kinds of alternatives should be used instead of detaining asylum seekers.
Detention may be considered as a last resort, only if necessary and only if it is clearly prescribed by a national law which conforms to the general norms and principles of international human rights laws, for the following cases:
If detention is deemed necessary, certain conditions must be met:
But States should create and use alternatives to detention.
Asylum seekers often face a host of other problems as well. They may be:
Most of these problems are borne of States' fears that migrants will create security risks or destabilise their economies and that asylum procedures are abused by would-be immigrants. Racism and xenophobia also play a part; as does the concern that relations with the country of origin may be damaged if refugees are admitted.
A female asylum seeker faces particular difficulties:
While some women flee persecution that is not gender-specific, others flee a particular form of persecution that targets them as females. Increasingly, a gender-based approach to interviewing female asylum seekers and to interpreting the refugee definition is being used to give weight to the particular persecution faced by women. There is growing recognition that gender-related violence under certain circumstances falls within the refugee definition.
Sometimes it is relevant to consider as part of status determination whether an individual could have remained safely in or could return to some part of his/her own country rather than seek asylum in another country. This is sometimes referred to as an "internal flight alternative." This decision must be made on an individual basis, taking into account both the situation in the country of origin, especially the stability of the proposed area of relocation, and the asylum seeker's individual circumstances. The judgment to be made is whether the risk of persecution that the asylum seeker experiences in one part of the country can be successfully, and reasonably, avoided by living in another part of the country. If it can, that would suggest that the fear of persecution may not, or may no longer be, well-founded. Factors that would be relevant in judging the reasonableness of relocating within the country of origin include: the asylum seeker's age, sex, health, educational or professional background; the presence of family members; the existence of ethnic and religious communities to which the asylum seeker belongs; and political or other links to the relocation area.
But it is important to remember that displaced persons should be free to move where they choose and to seek asylum in another country.
War, armed conflict and mass repression often result in large-scale population movements. Faced with a mass influx of refugees, neighbouring States sometimes close their borders or use force against refugees seeking asylum there. Boatloads of refugees have been intercepted at sea or pushed back out to sea by State authorities unwilling to allow them refuge in the country. For asylum countries, such large influxes of people represent an enormous strain on financial, environmental and social resources. Often, camps or settlements must be built and maintained; food and fuel must be provided. The areas in which massive numbers of refugees are accommodated face near-certain environmental degradation; and local communities may be or grow intolerant of sharing perhaps scarce resources with the new arrivals.
Sudden, mass influxes of refugees require immediate assistance. In these instances, there is no time to conduct individual status determination procedures.Therefore, when it appears that all members of a group are fleeing a country for similar reasons, it may be appropriate to declare group determination, or prima facie determination, of refugee status. In these situations, each member of a group is considered to be a refugee prima facie-that is, in the absence of evidence to the contrary.This form of determination offers a more flexible application of the refugee definition. It is based on the objective conditions in the country of origin that led to refugee flight.
Some countries in Europe have responded to emergency mass influxes of refugees by offering temporary protection to asylum seekers. To date, there are no universal standards that apply to the term "temporary protection".
The definition of "temporary" differs from country to country; so do the kinds of rights accorded to people who are given refuge in this way. Those who find refuge under temporary protection measures are sometimes not granted all the social rights of refugees, such as welfare payments, education or the right to work.
In general, however, temporary protection is a provisional form of protection that should be replaced by a longer-term solution as quickly as possible. It is sometimes applied during mass influxes, when determining individual refugee status is practically impossible. Many of those people accorded temporary protection are refugees as defined in the 1951 Refugee Convention.
Temporary protection should not be prolonged. It should be lifted, with UNHCR's agreement, when people can return to their country of origin in safety and with dignity. Individuals who do not want to go home must be allowed to go through established national procedures to determine their on-going need for protection. They should have the chance, after a reasonable period, to acquire full refugee status, if they qualify.
The first step toward protecting refugees is determining their legal status. But that is only the first step.Once their status has been recognised, their rights and physical security must be protected so they can settle adequately in the country of asylum while awaiting a solution to their problem.
Many of the world's refugees live in specially created camps or settlements that accommodate anywhere from several hundred to tens or even hundreds of thousands of people at any one time.
Providing care for and services to refugees in these conditions requires intricate planning and well-coordinated efforts among NGOs, UN agencies and any State authorities that may be involved.
From the refugees' perspective, living in these conditions is fraught with unforeseen problems. Privacy is lost; so may be the refugees' sense of control over their lives. Divorced from the routines and responsibilities of daily, independent life, refugees may find it difficult to maintain their self-respect, self-reliance and the belief in their own futures. Relief workers can help refugees cope and start rebuilding a "normal" life by consulting them and involving them in planning and maintaining the programmes designed to benefit them.
But not all refugees live in these conditions. Many live in urban areas or in villages, dispersed among the local population. Some of these people may not yet have gone through refugee status determination procedures so they may have no legal status within the country of refuge. Some may be recognised as refugees by UNHCR but may be only barely tolerated by the host government, thus making them vulnerable to harassment and extortion by police and other authorities.
Unfortunately, protection concerns can follow refugees into asylum. Protection problems in a country of asylum can be caused by:
International protection is a temporary substitute for the normal safeguards of national protection. International protection includes seeking solutions to refugee problems. The best solution is voluntary repatriation: refugees freely choosing to return home.
In mass refugee movements, it is important to analyse the particular circumstances and protection needs of individual refugees regularly and comprehensively. Often, a combination of solutions is required to meet the needs of the refugee population, as a whole, and to achieve a lasting resolution to the refugee situation.