Refugee protection in South East Asia Michael Timmins.

Refugee protection in South East AsiaMichael Timmins

Asia:

◦ 3,607,200

o Few Signatories (Philippines, Cambodia)

o Major camp populations

o Large numbers of unregistered refugees

◦No legal status◦Forcible return back to persecution

(refoulement)◦Arbitrary and prolonged detention◦Lack of access to healthcare, education,

and livelihood◦Host country exploitation

◦ Camps

◦ Urban refugees

◦ Mandate of protection

◦ Direct operational assistance

“Yet, the main responsibility for safeguarding the rights of refugees lies with states, not least because of the fundamental responsibility of states to guarantee the human rights of everyone (including non-citizens) subject to their jurisdiction and within their territory.”

Turk, V. & Eyster, E., Strengthening UNHCR’s System of Accountability (2010)

Asylum Claims in 2011:

◦ 876,100

South Africa:◦ 107,000

USA:◦ 76,000

France:◦ 52,100

UNHCR:

◦ 98,800

UNHCR Refugee Status Determination (RSD):

◦ Core protection mechanism

◦ Where states are unable or unwilling to conduct RSD

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To make the right decision under the Convention.

Objectively, on the facts found, is there a well-founded fear of being persecuted for a Convention reason?

Easy.

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Credibility assessment

Country of origin information

Legal assessment

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Legal assessment:

◦ Treaty interpretation: Vienna Convention on the Law of Treaties

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“[A decision-maker] must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty.”

R. v. SSHD, ex parte Adan and Aitseguer [2001] 2 WLR 143 (U.K.H.L., Dec. 19, 2000)

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“The effectiveness of mandate RSD as a protection function depends upon the fairness and integrity of UNHCR RSD procedures and the quality of UNHCR RSD decisions.”

Unit 1-1, UNHCR, Procedural Standards for Refugee Status Determination

Under UNHCR's Mandate (2003)

Michael Alexander (1999):

1. Publication of substantive criteria applied by UNHCR

2. Provision of information to asylum seekers

3. Availability and access to independent legal advice and assistance for asylum seekers

4. Allowing advisors or representatives to be present at interviews

5. Access to information on the asylum seeker’s file, and all information used in making a decision

6. Reasons for rejection

7. Right of appeal

8. Requirement of ‘new information’ for appeals

Consistent violations of natural justice

Lack of access to counsel

No accountability mechanism

Delays◦ Minute protection space

Global Administrative Law:

“…the operation of existing or possible principles, procedural rules and reviewing and other mechanisms relating to accountability, participation, and assurance of legality in global governance.”

Kingsbury, B., Krisch, N., & Stewart, R., The Emergence of Global Administrative Law (2005)

◦ Not legally trained

◦ Lack of experience

◦ Lack of sufficient support Credibility decision-making

◦ Compassion fatigue

Revision of the 2003 Procedural Standards:

◦ View applicants as rights holders, not beneficiaries

Bring UNHCR RSD staff into the international judicial conversation

State responsibility

Strategic litigation:◦ CAT◦ ICCPR◦ CRC

Regional Cooperation Framework

Externalising border control

Exporting bad policies

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