Legal refugee recognition in the Urban South: Formal v. de Facto refugee status.

Author:Kagan, Michael
 
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Abstract

The legal relevance of the "urban refugee" concept in the Middle East and Africa stems from the practice of practicing different forms of refugee status determination (RSD) in rural as opposed to urban areas. Urban refugees are usually subject to rigorous individual adjudication, while rural refugees are typically recognized on a prima facie basis. This difference in procedure has no basis in the substance of refugee law, and it marginalizes urban refugees in two key ways. First, in Africa and the Middle East, refugee status recognition is used by host governments to prevent refugee integration, to force refugees to live far from population centres, and to transfer responsibility for their welfare to international agencies. Second, individualized RSD procedures in wide use by the United Nations generally lack key fairness safeguards, increasing the risk that genuine refugees will be wrongfully rejected. This phenomenon means that urban refugee populations will often be systematically undercounted, and will include a significant number of de facto refugees who are in fact refugees in danger of refoulement, but whose applications were rejected and who thus have no access to the protection and resources otherwise targeted at refugees.

Resume

La pertinence juridique du concept de au Moyen-Orient et en Afrique provient de la pratique d'appliquer differentes approches a la determination du statut de refugie (DSR) pour ceux vivant en milieu rural par opposition a ceux vivant en milieu urbain. Les refugies en milieu urbain sont generalement sujets au n regime juridique individuel severe, tandis que ceux en milieu rural sont typiquement admis sur une base prima facie. Cette difference de procedure n'a aucun fondement juridique dans la loi sur le statut des refugies, et mene l'exclusion des refugies urbains de deux manieres fondamentales. D'abord, en Afrique et au Moyen-Orient, la procedure de determination du statut de refugie est utilisee par les gouvernements hotes pour empecher l'integration des refugies, pour les forcer a vivre loin des agglomerations, et pour transferer la responsabilite de leur prise en charge sociale aux organismes internationaux. En second lieu, les procedures individualisees de DSR largement utilisees par les Nations Unies ne contiennent generalement pas routes les sauvegardes essentielles aux principes d'equite, augmentant ainsi le risque que de vrais refugies soient rejetes a tort. Ce phenomene signifie que les populations de refugies en milieu urbain seront le plus souvent systematiquement sous denombrees, et incluront un hombre important de refugies de fait qui sont en realite des refugies en danger de refoulement dont les applications ont ete rejetees, et qui n'ont ainsi aucun acces la protection et aux ressources autrement destinees aux refugies.

Introduction

International refugee law guarantees refugee rights regardless of geography. Yet the law of refugee status is implemented differently in different places, particularly in terms of how a person obtains official recognition of refugee status. In Europe and North America, refugees usually obtain formal recognition of their legal status by making individual asylum applications to systems of administrative adjudication. In the geopolitical South, the presumed norm--at least in rural areas--has been for refugees to gain formal recognition on a group basis, without individual assessments.

Urban refugees in the South are subject to something more anomalous and problematic. They generally must make individual refugee claims, like their counterparts in the North, but these claims are decided through procedures that generally lack critical safeguards of fairness developed in administrative law and United Nations High Commissioner for Refugees (UNHCR) advice to governments. Whereas Northern states normally have unitary national systems that determine refugee status for anyone inside the country, African states often maintain dual systems of status determination within the same country, with different mechanisms in rural and urban areas. It is this procedural difference which makes the urban refugee category legally meaningful in the South, even as the substance of the law takes no notice of whether someone lives in a rural or urban area.

In this chapter I explore the background and impact of this anomaly, primarily through examples in Africa and the Middle East. The rural-urban dichotomy in refugee status determination (RSD) has no clear basis in international law, cannot be explained by common assumptions about international and regional refugee definitions, and likely violates the 1951 Convention relating to the Status of Refugees (Refugee Convention). Rather than in law, the rural-urban dichotomy has its origins in the different political uses of the formal label "refugee" in the North and the South. Whereas in Europe and North America, refugee recognition has been a means of granting asylum, in Africa it has often been a means of separating refugees from their host societies and transferring responsibility for their care onto the international community.

The determination of refugee status tends to marginalize urban refugees in the South in two related ways. First, it subjects them to an arduous individual application process in which many are refused protection, unlike their rural counterparts. Second, it subjects them to a high-stakes adjudication procedure that frequently lacks established safeguards and is hence prone to error. Although many urban refugees enjoy protection through formal status recognition, the risk of errant rejection of people in danger creates a class of de facto refugees, who should be of concern to refugee law and refugee policy, but in practice have no legal recognition or protection.

The de facto urban refugee poses a number of problems for refugee studies. It leads, first of all, to a systematic undercounting of the urban refugee population. It also points to a need for refugee studies to concern itself not just with the substance of refugee definitions, (1) but with policy choices about how to implement these definitions. Often, the mechanisms of implementation have done as much or more to exclude people than the definitions themselves.

For policy makers, and for anyone concerned with refugee protection, the de facto urban refugee raises immediate concerns. A de facto refugee is at risk of de facto refoulement, in which someone who should have been protected from deportation instead may be forcibly returned to a country where his or her life or freedom is in danger. Beyond this, a de facto refugee will be denied the subsistence, integration, and resettlement assistance that policy makers direct toward recognized refugees. There is a need for governments and UNHCR to reduce the rural-urban RSD dichotomy and ensure that individual RSD is only conducted where sufficient procedural safeguards are in place.

The Rural-Urban Dichotomy in Refugee Status Determination

One Country, Two Procedures

In the substance of international refugee law, the category "urban refugees" does not exist. In law, refugees are protected no matter where they live within a country; in terms of a government's obligations to respect refugee rights, refugees in a city are no different than refugees in any other area. The Refugee Convention actually prohibits any legal distinction between refugees depending on where they happen to live. Article 26 provides: "Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances." Recognition of refugee status should have effect even beyond a country's borders. (2) UNHCR's Policy on Refugees in Urban Areas states that "UNHCR's obligations in respect of international protection are not affected by either the location of the refugees or the nature of the movement to that location." (3)

That is the theory. In practice, in much of the geopolitical South, it makes a great deal of difference for someone's legal situation whether a refugee lives in a rural or urban area. The difference is not so much in the legal status per se, but in the procedure by which a refugee gains recognition for his or her status.

There are two main types of RSD procedures, individual RSD and prima facie recognition. Individual RSD is where each asylum seeker has his or her refugee claim adjudicated through an intensive case-by-case process that usually includes interviewing, documentation, research, and decision making based on application of the refugee definition. It is through the individual adjudication of asylum claims, in administrative tribunals and courts, that the law of refugee status has developed in Western countries. Controversies about the boundaries of refugee law--Are people who flee genital mutilation refugees? Are people who flee militant groups or criminal gangs refugees? Are people who flee domestic violence refugees?--have been adjudicated through this process. It is also through this process that governments attempt to weed out asylum seekers they believe to be inventing refugee claims, through the process of credibility assessment. Individual RSD, at least when conducted in keeping with international standards, is time consuming and resource demanding.

Prima facie protection is usually undertaken when lack of resources coupled with large numbers of asylum seekers from countries with known human rights problems makes it impractical and to a large extent redundant to undertake an intensive case-by-case process. UNHCR has explained that what would be a manageable number of applications in one country can be overwhelming in another:

[W]hat amounts to 'large-scale' or 'mass influx' will necessarily differ from country to country and/or region to region, and must be decided on a case-by-case basis. The analysis needs to take into account...

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