NGO statement on international protection, Executive Committee of the High Commissioner’s programme

Source: International Council of Voluntary Agencies (ICVA)
Date: 01 Oct 2009

60th Meeting
28 September – 2 October 2009

Agenda Item 5 a)

This statement has been drafted in consultation with, and is delivered on behalf of, a wide range of NGOs and attempts to reflect the diversity of views within the NGO community.

Although this year has seen some positive developments in the protection situations experienced by some refugee, internally displaced persons (IDPs), and stateless populations, this year has also seen the persistence and re-emergence of practices by States and UNHCR that serve to damage protection environments or otherwise violate the tenets and spirit of the 1951 Refugee Convention. NGOs re-emphasise their oft-expressed concerns regarding (among other issues):

(a) the expanding use of detention of refugees, children, and others for migration-control purposes;

(b) restrictions on access to territory and processes that minimise asylum space;

(c) “responsibility shifting” (as opposed to responsibility sharing) of some refugee-receiving States engaged in migration interception activities that give rise to clear instances of refoulement;

(d) the importance of UNHCR registration and refugee status determination processes according with the best practices it has helped develop and promote;

(e) the safety and security of refugees, NGOs, and UNHCR personnel living and working in conflict situations or otherwise vulnerable to violent attacks;

(f) adequate protections for stateless people; and

(g) measures to address the environmental impacts of displacement, particularly in camp-based situations.

While these issues remain at the forefront of the NGO community’s concerns regarding international protection, this year we wish to draw attention specifically to:

(a) practices of purported “voluntary” repatriation and processes for returning asylum-seekers;

(b) protracted urban refugee and IDP situations;

(c) the mainstreaming of protection and provision of humanitarian assistance in mixed migration flows; and

(d) the impact of UNHCR’s structural reform process on protection outcomes for refugees.

“Voluntary” repatriations

The nature of forced migration is such that the vast majority of refugees possess strong desires to return home should there be a sustained improvement in the protection situation. Where persecution has been sustained or the result of prolonged conflict, many refugees are keen to return to assist in the reconstruction and peace-building processes. Repatriation, therefore, remains one of the key durable solutions available to refugees, UNHCR, and the international community in resolving not only displacement situations themselves but also the ruptures that cause them.

However, the question of returning refugees to their country of origin involves an important assessment of the nature of the protection situation that returnees will encounter upon return, an assessment that should extend beyond the capacity and willingness of the State to provide the protection from the persecution that precipitated the initial displacement. Rather, effective protection of a refugee who is returning after flight must be considered contextually, taking into account: access to social and economic justice – including access to property rights; equal participation in transitional justice, democracy, and post-conflict community building initiatives; availability of education opportunities; quality of health care infrastructure, particularly for those who have suffered trauma or violence whilst either seeking or in refuge; environmental degradation and sustainable development opportunities; measures to address sexual and gender-based violence; and the ability to enjoy fundamental civil, political, economic, social, and cultural rights without discrimination.

Fundamentally, assessments of the viability of repatriation must involve refugees themselves and be sensitive to the micro realities of refugee lives that might not be reflected or discernible in the analysis of macro protection circumstances. Where credible information about protection situations cannot be obtained or some doubt remains as to the protection capacity of countries of origin, UNHCR and States must postpone or not support repatriation until such time as conditions enabling safe and dignified return to the country of origin are confirmed.

Once an informed decision to return is voluntarily made, formal processes of return must be prepared and performed in a genuinely participatory manner and with a view to the protection of human rights throughout the entire process. UNCHR, donors, and States on both sides of such return should begin from a perspective that the successful completion of return – and indeed, the greater prospects for sustainable return, re-integration, and re-engagement of the returnees in the productive life of his or her community and country of origin – will be directly related to the extent to which refugees considering return are given sound information about protection realities at home, are able to participate in decisions about their movement, and are enabled to prepare themselves and their families ahead of the return, including in meaningful education, skills-building, livelihoods, and income-generating activities during their displacement. States and UNHCR should also turn their minds to the relationship between the presentation to refugees of the repatriation option and the availability of the other durable solutions of local integration and resettlement.

NGOs strongly condemn actions of host governments that deliberately erode or remove the protection they have previously provided to refugees in an effort to catalyse so-called “voluntary” returns. NGOs also call on UNHCR to be more robust in its criticism of host States whose efforts to encourage returns amount to flagrant violations of fundamental human rights. In this regard, NGOs draw particular attention to the situations of Iraqis, Burundians in Tanzania, Rwandans in Uganda, Rohingya in Bangladesh, Sri Lankans and Afghans in the Asia-Pacific, and the Hmong in Thailand. The burning and demolition of refugee shelters as in Tanzania and Bangladesh respectively is unacceptable. Restricting access to food and water to drive people from camps, as has happened with the Hmong in Thailand is also unacceptable. Protection assessments that ignore clear security risks posed upon return, or do not acknowledge the risks that continue to be faced by women and other vulnerable populations – such as has occurred with Iraqis and Sri Lankans – are not just unacceptable but give rise to refoulement concerns. So, too, are efforts to return refugees – without consultation – to countries other than their countries of origin, or particularly with respect to refugee children, to places which they have no connection, as has occurred with some populations of Afghan refugees in South-East Asia.

NGOs further express their concern in relation to bilateral or trilateral agreements negotiated between States or between UNHCR and States to facilitate returns of refugees that do not incorporate refugees as stakeholders in these processes. In such instances it is not sufficient for UNHCR to argue that it is acting in the best interests of refugees or in accordance with its protection mandate. When considering the viability of repatriation, upholding the dignity of refugees in the process is imperative. So, too, is the respect for fundamental rights of refugees, including the right to information and the right to participation.

Return of asylum-seekers

Similar problems arise with the bilateral State agreements that facilitate the return of rejected asylum-seekers, particularly those who have arrived in mixed migration flows. NGOs note with concern that some countries, such as Italy and Sri Lanka, are negotiating agreements with States that result in the return of asylum seekers to countries that (a) are not parties to the Refugee Convention, (b) have limited capacity or willingness to undertake refugee status determination, or (c) are otherwise reluctant to meet their international protection obligations. Furthermore, the prospect of arrest, indefinite detention, and/or limited access to services in host countries should not be used to “encourage” asylum-seekers to return to their country of origin. NGOs call upon UNHCR and States to continue to work together to preserve the integrity of asylum space.

As elaborated in the NGO Statement to the General Debate of this session, NGOs emphasise their shock at the increasing rush to repel and forcibly return asylum seekers from Afghanistan and Iraq, including Convention-blind new policy reflexes in Greece, Italy, and Malta, and recent actions by Denmark to forcibly return asylum seekers to Iraq, not only involuntarily, but with no meaningful prospect that their security and human rights needs would be met. What NGOs especially regret is that these countries have laws, traditions, and a record of protection and rescue that are far better than their recent track record.

Protracted urban refugee, stateless, and IDP situations

NGOs welcome efforts by UNHCR and States to address the challenges posed by protracted, camp-based refugee situations as well as urban refugee populations. NGOs note, however, that comparatively little attention has been paid to dealing with the challenges posed by urban displacement situations that are also protracted. In many cases, it is incorrectly presumed that the longer refugees remain in urban situations the more likely they are to be effectively locally integrated. However, whether registered with UNHCR or not, large numbers of refugees in protracted urban situations are often at significant risk of arbitrary arrest and detention, struggle from lack of access to appropriate services, are socially isolated and open to economic exploitation, including sexual exploitation. Eritreans and Sudanese refugees in Kenya and Uganda, Sudanese, Somali refugees in Egypt, Kenya, and India, and Afghan refugees in Indonesia and Malaysia, are just some of the urban refugee populations whose particular needs are frequently overlooked, especially when urban populations are co-located with camp-based populations. NGOs call on UNHCR and States to explore more effective means of addressing the protection needs of refugees in protracted urban situations and trust that these will be incorporated within the pilot projects on protracted refugee situations.

NGOs reiterate their call for UNHCR and States to use resettlement as a strategic tool for unlocking protracted situations, and to apply this tool more effectively with respect to urban refugee populations. Refugees and those who work with them consistently report difficulties accessing resettlement for refugees in urban settings, particularly when compared with refugee camp populations. Further, given that fewer than one percent of individuals requiring resettlement have traditionally been able to access this durable solution, it is incumbent that resettlement is pursued in concert with other approaches across the humanitarian protection and development agendas of States, to address the needs of refugees that are not able to enjoy resettlement in third countries.

In addition, while the proposed Conclusion on Protracted Refugee Situations prepared as a follow-up to last year’s High Commissioner’s Dialogue, provides some guidance on when States may consider a displacement situation to be “protracted” and the attendant protection actions required, NGOs encourage States to view protracted refugee situations more qualitatively, with consideration given to the nature of migration flows, root causes of displacement, and the experiences of refugees in host communities.

The release of UNHCR’s long-awaited policy on urban refugees provides greater guidance to States, implementing partners, and other humanitarian actors providing protection in urban settings. In particular, NGOs commend the drafters of the policy for their acknowledgment of the right of asylum-seekers and refugees to move to, and access protection in, urban settings; their promotion of a contextual understanding of the vulnerabilities experienced by urban refugees; their call for UNHCR to engage in substantive outreach activities to access and engage refugee communities in decision-making about their protection needs; their emphasis on age, gender, and diversity mainstreaming; and their identification of some of the key protection needs of urban refugees.

While NGOs broadly support UNHCR’s movement on the new policy, and were happy to contribute to its development over time, particularly at our NGO Consultations three months ago, we are concerned about the lack of opportunity afforded for field testing of the policy among affected populations. We further regret being excluded from the final preparation of the policy, but trust that this digression from more productive – and ordinary – consultative process will not be illustrative of UNHCR’s approach to reform of significant policies in the future.

To this end, NGOs support the call within the new policy for ongoing review of its implementation and impact. However, we are hopeful that such reviews will also address requests for specific (or at least cross-referenced) operational standards and guidance material for the policy; the exclusion by omission of urban stateless people from the policy; and the decision not to extend some protection tools (such as livelihoods) to cover asylum-seekers. In addition, we anticipate further guidance from UNHCR as to how it will situate this policy in the context of its other protection obligations, for example, in instances where urban refugee populations co-exist in close proximity with camp populations but are not able to enjoy the same standards of rights, or in situations where UNHCR also has cluster responsibilities.

Beyond the urban refugee policy, NGOs welcome the upcoming High Commissioner’s Dialogue as an opportunity to collaboratively develop guidance on addressing the needs of broader populations of concern to UNHCR in urban settings, including IDPs and stateless people. We hope that lessons from the protection challenges experienced most recently in Pakistan and Sri Lanka, and in the protracted situation in the Democratic Republic of Congo will inform this policy. In particular, NGOs look forward to practical indications as to how UNHCR seeks to balance its protection mandate with the responsibility of States to protect their own populations; the manner in which host communities can be most effectively supported in their provision of first assistance to IDPs; how protection for vulnerable groups such as women and unaccompanied children can be assured; and the most effective mechanisms for ensuring the realisation of the full suite of rights, including education, livelihoods, and freedom of movement for IDPs.

“Mainstreaming” protection in regional responses to mixed migration flows, in the provision of humanitarian assistance, and within host communities

NGOs continue to support the efforts of UNHCR and States to ensure protection-sensitive policy responses to mixed migration flows. While UNHCR’s 10-Point Plan provides a practical framework for the development and coordination of such policy responses, both States and UNHCR should acknowledge the difficulties presented when applying this framework in certain regional contexts. In particular, those who implement the 10-Point Plan need to recognise that not all migration experiences are linear and can be easily and discretely classified as asylum-seeker, victim of trafficking, or “economic migrant.” Rather, just as many refugees’ experiences of persecution may be intersectional, their migration histories may also be complex and overlapping. Consequently, NGOs support attempts by States to mainstream protection across migration policy, rather than viewing protection as a privilege available only to those who are deemed Convention refugees. In addition, although NGOs generally support the efforts of States to establish regional mechanisms for addressing forced migration issues that have specific regional implications, we caution strongly against arguing that regional specificities necessitate a watering down or reinterpretation of international protection principles. NGOs also call on States to provide for the formal participation of NGOs and refugee communities in the development of these regional mechanisms.

NGOs view UNHCR’s role in the cluster system for coordinated humanitarian action as bringing attendant obligations to support the mainstreaming of protection beyond the protection cluster. NGOs further encourage States responsible for delivering or facilitating humanitarian assistance to displaced populations to adopt a rights-based protection approach to the provision of such assistance, especially cognisant of the principles of non-discrimination and gender sensitivity.

In addition, UNHCR and States providing assistance to refugees and stateless people should consider the extent to which protection of these populations should be incorporated within or provided alongside broader protection activities that also benefit host communities. In particular, NGOs support protection activities and programmes related to economic empowerment, health care, and education, being extended to host communities as a means of improving the overall protection situation for refugees, increasing public support for refugees, and raising general standards of human rights.

UNHCR’s structural reform processes and the impact on protection outcomes

NGOs continue to support UNHCR’s structural reform process, including those elements that focus on regionalisation of operations and increasing the ability of country offices to respond more autonomously to protection issues as they arise. However, NGOs caution against a presumption that simply increasing the decision-making and resource allocation powers of country offices will necessarily and in every instance augment protection outcomes. We reiterate calls for UNHCR to ensure that robust feedback mechanisms from all stakeholders – not least affected populations – are incorporated within the monitoring of the protection impacts of structural reform.

Thank you, Mr. Chair.

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