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From Identity to Refugee Status Determination

“The Sincere Will to Understand”

Submitted by, Susan R. Ramonat

Introduction

In his 1922 Nobel Prize acceptance speech, “The Suffering People of Europe,” Fridtjof Nansen lamented the continent’s long history of war. With the ghosts of WWI still lurking, he spoke movingly about the wages of war and ongoing suffering of millions displaced by years of famine and war across Germany, Eastern Europe, the Soviet Union and Middle East. Nansen stated that the future could not be “built on despair, distrust, hatred, and envy.” Rather, he declared, the first prerequisite for defeating the disease of conflict and war was “an understanding of the cause and nature of the disease itself.” “Such an understanding,” he cautioned, “is certainly not attainable in a day. But the first condition for its final establishment is the sincere will to understand.” 1

A polar explorer and scientist, Nansen was named the League of Nation’s first High Commissioner for Refugees in 1920. Over the next decade he helped hundreds of thousands to return home, while enabling others to become legal residents and find work in the countries where they found refuge. Nansen saw that a primary problem faced by refugees was a lack of internationally recognized identification papers. His solution was the first legal instrument for international protection of refugees, which become known as the “Nansen passport.” [2](http://stories.unhcr.org/nansen-passport- p34721.html)

Problem Statement

Nearly a century later, the Nansen passport stands as a precursor to the ambitions of ID2020 and the Web of Trust – to create legal and technology solutions for self-sovereign identities on behalf of hundreds of millions around the globe by 2030. Each, in its way, represents a profound vision for the future. Still, as we consider the challenges faced by refugees, we must take to heart Nansen’s admonition about the first condition for such a future - “the sincere will to understand.”

For millions of refugees torn from their homes, identity is necessary, but not sufficient. For those seeking asylum – 1.3 million from citizens of non-member countries of the EU in 2015, up from 627,000 in 2014 and 431,000 in 2012 – the prospects for timely refugee status determination (RSD) are forbidding. Outside the EU, the numbers are similarly large and the capacity of nation states, NGOs, and the UNHCR to process RSD applications severely strained. Whether in transit camps, detention centers, settlements, or urban settings, asylum seekers – and stateless persons more generally – have grown in such numbers that the organizations and practitioners responsible for expedient functioning of procedures and the correct application of refugee definition are overwhelmed. Underfunded, understaffed, and, in many cases, inadequately trained to manage thousands of individual RSD cases, they also face complex legal and policy problems depending on which state is involved.

3.1, 3.2

Refugee Status Determination (RSD): Why It Matters

Refugee law, some argue, is the world’s most powerful international human rights mechanism. Millions of people invoke its protections every year around the globe by voting with their feet. They do so because refugee status is not a status that is granted by states; it is rather recognized by them, in keeping with the UNHCR’s insistent statement:

A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which refugee status is formally determined. Recognition of refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee. 4

With this status comes a catalog of internationally binding rights, including critical civil rights, socio-economic rights, and rights that enable pursuit of a solution to refugee-hood. Indeed, the preamble of the Refugee Convention notes the importance of solving an international problem through state cooperation in a manner that promotes “the widest possible exercise of…fundamental rights and freedoms.” 5

RSD: A Definition and Process

The hallmark of a refugee under the Convention is an individual’s inability or unwillingness to return home due to a “well-founded fear of being persecuted.” Not all forced migrants face a genuine risk of being persecuted. While most leading courts of common law have adopted the UNHCR’s opinion that fear is “a state of mind and a subjective condition” without analysis or modification, the scope and meaning of “being persecuted” in one’s own country considerably complicates RSD assessments and decision-making.

The “being persecuted” inquiry includes both identification of a relevant serious harm and a concomitant failure of state protection. That said, the Refugee Convention does not define or elucidate the meaning of this concept. Case practitioners and, in some cases, courts have been forced to adopt a flexible approach based on principle. Or, as stated by Hathaway and Foster in their seminal text, “The Law of Refugee Status,” (Second Edition): “(By) adopting the view that a risk of ‘being persecuted’ requires of evidence of a sustained or systemic denial of human rights demonstrative of a failure of state protection.” 6

How Significant is the Problem?

Decades after ratification of the 1951 Convention and the 1967 Protocol, only 117 Convention States out of 148 are operating a specific and regulated RSD procedure. Further, according to a study commissioned by the UNHCR, even in those nations where it is working to transition and transfer mandate RSD, the agency needs to clarify the “minimum procedural requirements for RSD based on a realistic appreciation of the challenges involved, (especially) in the area of independent appeals and legal assistance,” as international standards and practice have evolved. 7

The most recent data available for the top 20 countries to have granted protection for refugees between 2000 and 2014 is roughly 3.4 million. “Granted protection” means people who have been granted refugee status, complimentary forms of protection, and/or temporary protection during a year 8 In other words, depending on the circumstances, a refugee is not necessarily “good to go.” With the UNHCR acting as a proxy for many nation states globally, how significant is the problem? In 2012, the UNHCR reported a backlog of 146,000 cases – 52,000 in Kenya and 17,000 in Cairo alone. Average time to determination was 14 months in Kenya and 15 months in Turkey – this before the onslaught of refugees from Syria, whether arriving directly or upon being sent back from Europe under the country’s recent agreement with the EU.

Struggling with inadequate resources and high affiliate staff turnover, the UNHCR has calculated a metric of 4 “regular cases” per staff per week. With only 400 dedicated staff members globally, the implied capacity of the agency to interview and assess such cases was 83,200, less than 60% of the cases presented in 2012. Needless to say, the crises in Syria and northern Africa have compounded the agency’s challenges. 9

Given these capacity limitations, not to mention numerous other impediments and constraints faced by refugees in getting to their destination country and filing for asylum, it’s not surprising to learn that tens, if not hundreds of thousands of refugees wait years with no resolution. Lost in the system, they languish in refugee camps or melt into their adopted communities without fundamental protections and freedoms.

Call to Consider

In sum, despite the UNHCR’s mandate and best intentions, the RSD process is broken. It is the opinion of the author that ID2020 and the Web of Trust should, over time and in due course, broaden their scope to create legal and technology solutions ensuring adequate, effective and timely refugee status determination (RSD) if they are to make good on their mission to serve this population. Identity is necessary, but not sufficient.

Citations

  1. Fridtjof Nansen, “The Suffering People of Europe,” Nobel Lecture, December 19, 1922.
  2. For more about Nansen, see the UNHCR’s website: http://stories.unhcr.org/nansen-passport- p34721.html
  3. Sources: UNHCR (http://www.unhcr.org/pages/49c3646c4d6.html); Eurostat (http://ec.europa.eu/eurostat/statistics-explained/).
  4. UNHCR, “Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” UN Doc.HCR/IP/4?eng?REV.3 (2011) (“Handbook”), at [28].
  5. Refugee Convention, Preamble, paragraph 2.
  6. Hathway, James C. and Foster, Michelle, “The Law of Refugee Status” - Second Edition, Cambridge University Press (Cambridge, UK), 2014.
  7. “Providing for Protection: Assisting States with the Assumption of Responsibility for Refugee Status Determination,” Study commissioned by the UNHCR Policy Development and Evaluation Service (PDES), March 2014, p. 3.
  8. UNHCR Statistical Yearbook, 2014. The top 5 countries for the period were Turkey, Lebanon, the United States, Jordan and Ethiopia.
  9. The primary reference for RSD determination is the UNHCR’s “Procedural Standards for Refugee Status Determination under UNHCR’s Mandate,” UNHCR. In addition to covering such general issues as confidentiality, RSD file management, interpreter access, physical facility and office security requirements, and compliant procedures, the standards guide details reception and registration, adjudication of refugee claims, processing claims based on family unity, notification of RSD decisions, appeal of negative RSD decisions, UNHCR Refugee Certificates, procedures for file closure.re-opening, procedures for cancellation of refugee status, and procedures for cessation of refugee status.
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