Taking on the UNHCR on Status Determination

Refugee Rights News
Volume 2, Issue 3
September 2005

On September 1, 2005, the United Nations High Commissioner for Refugees (UNHCR) published new Procedural Standards for Refugee Status Determination (the Standards). These Standards are a centerpiece of the UNHCR’s efforts at internal reform, efforts which a small group of advocates and academics have been pushing for since the late 1990’s.

UNHCR and status determination

The role of determining who is, and is not, in need of protection as a refugee is understood as primarily the responsibility of governments. In many countries, particularly in the Global South, however, UNHCR is called upon to conduct refugee status determination (RSD) on behalf of governments which do not have the capacity. In addition, UNHCR conducts status determination in countries which have not ratified the Refugee Convention and thus are not obliged to determine status.

UNHCR’s practices with regard to status determination have been widely criticized by advocates who say that conducting determinations undermines the UNHCR’s role as refugee advocate. In addition, they have faulted UNHCR for not living up to the standards it sets out for governments both in terms of the procedures it follows and the lack of transparency in its process. This criticism has helped to spur moves to reform— including, most recently, the articulation of new standards for UNHCR status determinations.

As the first such statement of UNHCR practice, the Standards provide advocates with an important new tool for assessing the progress of UNHCR’s reform process as a whole, in addition to serving as a benchmark for individual UNHCR offices worldwide.

The advocates’ response

The response to the launch of the Standards from advocates, including those who have long advocated for RSD reform can be described as cautiously positive. As Michael Kagan, an American lawyer and refugee rights expert who has worked on issues involving status determination in London, Beirut and Cairo, reflected, when he started in the field there was no where to look for standards. In his view, “the publication of the standards alone is a breakthrough.”

But there are a number of concerns, however, about the content of the standards themselves. A group of concerned NGOs, including AMERA (Egypt/UK), Frontiers ( Lebanon), the Helsinki Citizens Assembly, the Refugee Consortium of Kenya, and the Refugee Law Project ( Uganda), has expressed concern at ambiguous language in the standards and expressed fears that this, if combined with weak implementation procedures, might ultimately undermine the standards.

Another advocates response has come from RSDWatch, which has launched a reference guide to help advocates quickly understand the Standards as well as providing its analysis of the progressive elements and shortcomings it perceives in the new guidelines.

Significant steps forward on current UNHCR practice are identified by RSDWatch in some areas. RSDWatch applauds UNHCR’s affirmation, for example, of the right of asylum seekers to legal accompaniment at all stages of the application process. RSDWatch also acknowledges the new guidelines’ official recognition that the most vulnerable asylum seekers do not have the luxury of time—they need to receive priority attention and faster decisions on their cases. In addition, RSDWatch has welcomed the recognition that asylum seekers deserve the right to receive, in writing, the specific reasons for the rejection of their refugee claim.

Nonetheless, RSDWatch remains critical of the lack of progress in other areas. The new guidelines fail, for example, to alter UNHCR’s practice of refusing asylum seekers access to all the evidence in their files. They point out that this policy conflicts with UNHCR’s own advice to governments on how they should conduct their RSD procedures, and that it may violate human rights and administrative law. Rejected asylum seekers may have no opportunity to address inconsistencies or offer other evidence if they are not informed of the nature of the evidence used to deny their claims.

RSDWatch also expresses disappointment that the Standards do not contain provisions for the constitution of independent bodies to hear appeals, despite the fact that UNHCR advises governments that rejected asylum seekers should be able to appeal to an institutionally separate authority. Within its own structures, however, UNHCR only requires that appeals be considered by an official who was not involved in the first instance decision. Appeals are decided, therefore, in many cases by close colleagues of the person who made the first decision, often working under the same supervisor, and perhaps even seated in the same room. In such conditions, RSDWatch argues, it is difficult to guarantee an impartial review.

Putting the Standards to Use

The Standards represent an important tool for advocates. Micheal Kagan calls on fellow advocates to put them to use:

…human rights groups around the world should take these 170 pages and go to their UNHCR office. Ask, ‘Are you implementing the standards?’… These standards aren't perfect, but they're a huge improvement from nothing. We can't let them sit on the shelf and collect dust.

But the Standards, however, may appear daunting and confusing to some advocates attempting to grapple with the new tool, coming in at over 175 pages long and covering a wide range of issues from confidentiality to appeals. The analysis and wide range of materials by contributed by advocates around the world gathered on the RSDWatch website, however, can be an important resource.

A new NGO exchange forum

The RSDWatch site is an independent initiative founded and maintained by Michael Kagan. RSDWatch aims to fill a void in information and understanding about the way in which the UNHCR handles the determination of refugee status. Until recently, NGOs who have been dealing with UNHCR as an adjudicator have not had the opportunity to place their experiences in a global context, or to exchange notes on how to make effective interventions. UNHCR has not comprehensively reported on its activities in this regard.

In addition to its own analysis, RSDWatch hosts a forum for exchange by refugee advocates and offers links both to UN documents and commentary on how UNCHR standards hold up under international laws.

RSDWatch offers up-to-date statistics and reports about UNHCR refugee status determination in all the countries where UNHCR plays an active role in the process. A Forum allows advocates from around the world to contribute information about refugee status determination procedures in their own countries—and to comment on policy issues. Submissions should be directed to info@rsdwatch.org.