Elements of a Strategy for Protecting Refugees Amid Migratory Movements

The challenges of identifying and providing protection to refugees amid large-scale migratory movements are evident. They are hard for any outside agency to locate. They may be undocumented, hidden, and scattered. In the course of their journey, the asylum seekers are vulnerable to extortion, trafficking, and forced labor. Upon arrival, they are vulnerable to arrest and deportation. They resist being placed in camps to retain their ability to work, even in the underground economy, and a few take the risk of returning periodically to provide assistance to family members back in the home country.

Any effective response to these challenges immediately raises the sensitive issue of state sovereignty. Now more than ever states are insisting on the right to control their borders, while dismissing as trivial the ancillary cost of denying asylum to refugees. Leverage points are scarce, as few countries have the political will and the moral standing to use diplomatic and other means to force countries of first asylum to live up to their legal obligations under the Refugee Convention and international human rights law. These obligations include protecting rights to life, health, education, and livelihood as codified in international agreements including not only the Refugee Convention, but the Universal Declaration of Human Rights and the Covenants on Civil and Political Rights and Economic, Social, and Cultural Rights.

The concept of burden sharing is therefore critical. Countries on the front lines of major movements of asylum seekers require targeted financial and political support from governments with the resources to assist, such as the United States, the member states of the European Union, Japan, Australia, and the Gulf States. Financial support is important, but diplomatic engagement is equally essential to attempt to resolve the problems of human rights abuse and state collapse that contribute to large-scale refugee flows.

For its part, UNHCR needs to ensure that its leadership and field staff maintain their advocacy on behalf of asylum seekers within large-scale migratory movements. Battling governments on these issues is wearying and there is a tendency to succumb to fatigue and cynicism over time. On various RI assessment missions, staff have documented less than vigilant UNHCR responses to the challenges, especially a tendency to get bottled up in the capital city far from the reality of the border regions. UNHCR needs to be especially aggressive and vigilant in insisting on a staff presence in these areas to be able to witness any egregious abuses by local security personnel and to be available in the event that clear emergencies arise. In crisis-prone areas, donor governments should provide diplomatic and political clout to back UNHCR’s requests for regular unimpeded access to asylum seekers.

Access and presence alone, however, fall well short of an effective protection regime for asylum seekers amid large-scale migratory movements. Other essential elements include the following:

Establishing “protection-sensitive” border controls: UNHCR is advocating for security personnel along the borders of countries attracting mixed flows to have the capacity and the sensitivity to be on the watch for individuals who may qualify for international protection. Achieving this objective will require both political will on the part of the host countries and extensive training, which the refugee agency is in a position to provide. Unfettered access by UNHCR and international non-governmental organizations with protection expertise should be an essential aspect of any protection-sensitive border regime.

Ceasing refoulement and halting deportations: Forcible return places vulnerable individuals at risk, especially when asylum countries hand people back to state security in their country of origin. When return is to countries such as Zimbabwe, Burma, and North Korea, deportation may lead to punishment and long-term imprisonment. Further, deportations fail to discourage individuals from seeking to cross the border again, especially when the primary motivation is escaping persecution or trying to survive. If deportations are absolutely necessary after legal status reviews have been exhausted, then efforts should be made in conjunction with the International Organization for Migration and UNHCR to ensure that the process is conducted in a way that protects vulnerable individuals.

Providing emergency assistance: Host governments and international organizations need to identify creative ways to provide humanitarian assistance to vulnerable individuals on the assumption that establishing refugee camps will usually be inappropriate. Local institutions, such as churches and community-based organizations, should play an important role in delivering the aid, but they will require funding. International donor governments, in conjunction with UN agencies and international non-governmental organizations, will have to bear the primary burden in providing the needed resources, but minimal cooperation is needed from host governments to allow such programs to go forward. In urban settings, providing cash or vouchers to individual families, who in turn will choose how to spend the funds, is more effective than setting up feeding centers or special schools and health facilities.

Providing legal status to vulnerable individuals: Ultimately, the imperative is for the host countries to take steps to resolve the illegal status of people requiring protection. The international experience provides numerous examples of potential legal remedies: indefinite humanitarian status; special short-term resident visas; one-year temporary protected status; guest worker status; amnesty. Host countries can utilize any or all of these means, and should do so especially when the situation in the home countries of the asylum seekers is deteriorating, as evidenced by UN human rights reports or records of Security Council deliberations. With legal status, asylum seekers will be more willing to live openly in society and avail themselves of humanitarian services provided by local institutions and international agencies. Ensuring legal status also goes a long way towards preventing statelessness for current and future generations.

Documenting the problem: These approaches are interdependent: effective humanitarian assistance depends on having some sense of the numbers of people requiring it, but an accurate count depends on the availability of legal status, for otherwise people will be reluctant to emerge from hiding and be counted. Nonetheless, it is in the interest of host governments to know the extent of the problem, if for no other reason than to manage it more effectively and advocate for international support if required.