Systemic gaps in Refugee Framework

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Prabhat Singh's picture

The Syrian crisis has sent 1.9 million scurrying out of Syria to neighbouring countries Jordan and Iraq, nearly 1 million of these are children. Rohingya refugees from Myanmar continue to flood into Bangladesh, fleeing persecution. There was a major flare up in India1 in 2012 over scores of Bangladeshi refugees in the country.

The refugee crisis has gained traction across both developed and developing world and has turned into a major political plank in US, UK, Australia, India and Bangladesh. Statistics reveal that number of refugees is going up and their condition is deteriorating every year. Owing to their vulnerability, they’re also being used as tools for criminal activities. The entire refugee framework is crying out for systemic changes. This piece focuses on some of those.

The definition of a refugee was established under International Law in 1951, when refugees multiplied under Nazi atrocities. UN Refugee Convention of 1951 continues to be the fulcrum governing fate of refugees across the world. According to Article 12 of this convention, a refugee is any person who is outside his country of origin and faces a “well founded fear” of persecution owing to his race, religion, nationality or political opinion, and thus, is unable to return to his country of origin. Originally, the Convention was meant only for WW2 refugees, however, a subsequent Protocol removed such restrictions. At the heart of the Convention lies the principle of ‘non-refoulement,’ enshrined In Article 333, which states that no person shall be turned away from another country if he’s fled owing to fear of persecution in the home country.

Refugees continue to be the most neglected, vulnerable and despondent class of humans. Almost always unemployed, they’re vulnerable to criminal attacks in destitute camps they occupy. Being outsiders, they’re viewed with suspicion and maliciously labelled ‘illegals’ and ‘beggars.’ An overwhelming majority of people can’t differentiate between terms- asylum seeker, refugee and migrant. An asylum seeker is one who’s applied for refugee status and has his claims under processing, whereas a migrant is one who’s left his home country seeking better prospects, usually economic, but apparently faces no threat to life.

The UN agency responsible for most refugees is UNHCR, whereas UNRWA is responsible for the remaining nearly 5 million Palestinian refugees. The principle functions of UNHCR include determining the authenticity of claims of asylum-seekers- a critical process known as Refugee Status Determination (RSD), providing shelter, educational, health, work opportunities to refugees and integrating them with locals. UNHCR is in-charge of refugees’ ultimate fate, which involves repatriation to original country or resettlement in present or third country.

A look at refugee statistics reveals incredulous facts.  Syrian crisis has upped total refugees to 17.3 million(Fig.1). A shocking 48% of these are children. Well over half the refugee population resides in developing countries. The Least Developed Countries host 2.4 million refugees.  Developed countries put together host 3 million refugees. Contrast this with Pakistan which alone hosts 1.7 million!(Fig.2). Last year, there were nearly 900,000 applications by asylum-seekers to developed countries. High rate of rejection means genuine refugees are deported, contrary to principle of non-refoulement. While paying lip-service to refugee welfare, countries continue to spend billions in establishing border controls and similar mechanisms to keep refugees out. Australia has taken the lead in being harsh on refugees by turning away large numbers of them approaching Australia by boats from Indonesia and Sri Lanka, pejoratively terming them ‘boat people4.’

While there is little doubt that developed countries need to take more responsibility, in times of economic crises, it’d be utopian to expect countries to allow entry to all foreigners fleeing persecution. Determination of those facing genuine risk presents another dilemma in this age of mixed migration, where refugees and economic migrants often move in mixed groups, the latter often touting themselves as refugees to maximize chances of entry. Governments have to deal with asylum seekers disappearing into their countries on rejection of claims, which has been rightly blamed as a reason behind rising crime rate and aggravated popular outcry to curb immigration. Desperation to seek asylum, for fear of persecution or economic reasons, has given rise to human trafficking industry5. Refugees are viewed as unscrupulous outsiders by locals which impedes integration with ambient environment and limits work and educational opportunities. Urgent measures are needed to plug systemic gaps in refugee framework to not only ameliorate condition of refugee, but also make it easier for governments to admit and administer them. Some of those gaps are discussed below:

1. Not enough signatories: Countries holding a majority of refugees are non-signatories to the Convention(Fig.3) , which means they’re not bound by principle of non-refoulement and are free to turn away refugees. There’s no data on how many refugees were forced by non-signatory States to return to the very horrors they fled. Being non-signatory means such countries lack domestic legislation for refugees, thus, the bulk of workload for Refugee Status Determination (RSD) and upkeep of refugees remains with UNHCR, which is considerably under-equipped compared to governments.

2. Problems with RSD: Refugee Status Determination (RSD) is arguably the most critical pillar of refugee welfare. It is RSD which determines whether an asylum seeker turns into a refugee or is deported. Sadly, the Convention doesn’t mention the need for RSD system. UNHCR evolved its own system for RSD and recommended governments to follow suit, though there are glaring gaps in its implementation6. The gravest problem is faced in developing countries where UNHCR often acquiesces to government’s diktats of admitting a certain category and number of refugees, usually from friendly countries. Most asylum seekers lack access to legal help. Communication of reasons behind rejection of claims is rare, which weakens appeal against decision and violates right to information.

UNHCR needs to learn from EU’s procedures which clearly lay down norms for RSD, and where legal representation is provided and information is clearly communicated. It would be imprudent to expect UNHCR, with its limited resources, to carry this out, which is another reason why States need to sign the Convention.

3. Outdated Convention: The essence of criticism of the Convention is that it’s anachronistic. It was designed in and for a different era, and deals mostly with individual refugees, not with mass exoduses caused by civil wars and ethnic conflicts which are major reason for refugee flow now. Earlier, developed countries especially had few problems in admitting refugees because of low numbers and focused mostly on defectors from Communist to ‘Free World.’ Now, most countries turn away refugees because procedures in the Convention aren’t designed to handle huge, fleeing groups. UK Home Secretary has poignantly remarked- “too broad for conditions in the 21st Century, and as no longer an adequate guide to policy in the age of mass air travel and economic migration.”  There’s another school of thought that says the Convention is too narrow, since most refugees now flee for a combination of political and economic reasons, and not just on account of criteria mentioned in the Convention, and are thus dubbed “fake” by many countries and turned back.

There is an urgent need for a new Convention to incorporate punitive actions against oppressive regimes which instigate mass refugee outflows, such as those in Iraq, Afghanistan, and now Syria.

5. Integration and Resettlement: UNHCR proposes three eventual measures for amelioration of refugees- Repatriation, Resettlement in country of first asylum and Resettlement in third country- in that order.  Before any of these happens, refugees survive in sub-human conditions in camps where they battle epidemics and sexual abuse. Local community views them with suspicion and they’re often, as rightly pointed out in case of Rohingyas7, manipulated for criminal activities. The greatest challenge before UNHCR and governments is thus refugees’ integration with locals and provision of basic livelihood to ensure a dignified life. Basic sanitation, education and work opportunities must be ensured by governments and UNHCR. Articles 17-23 of the Convention suggest several amenities such as employment, rations and housing to be extended to refugees. Sadly, these are rarely complied with. Refugees sometimes spend their entire lives in makeshift camps where generations are ruined. Rather than asserting right of individuals to return home to safety, the Convention has institutionalised notion of exile as a solution to refugee problems. Repatriation to original country, the most comprehensive solution, is often impeded because the original country refuses readmission of its own citizens for political reasons.

To conclude, the entire refugee framework is governed by two opposing forces- a liberal paradigm motivated by human rights, and a protectionist paradigm motivated by politics and xenophobia. Norms under International Law are fluid, thus leaving room for arbitrariness. The law also needs to set a “common but differentiated responsibility” between developed and developing nations to handle refugees, thereby increasing onus on developed nations. Standards for handling refugees should be set by International Law, not by a reactive public or government. Of course, the long term solution lies not in managing refugees but in causes which result in their mass flight, which range from oppressive regimes to ethnic conflicts.