Memorandum submitted by the United Nations
High Commissioner for Refugees (UNHCR)
1. INTRODUCTION
1.1 UNHCR's mandate responsibility is to
provide international protection to refugees and facilitate solutions
to the problems of refugees. This responsibility includes the
function of supervising, in co-operation with States, the application
of the 1951 Convention and its legal protection regime.
1.2 Since 1990 and the end of the cold war
the nature of refugee movements has changed. Globalization, which
has led to increased prosperity in some regions but which has
also exacerbated inequalities, has also changed the nature of
refugee movements. Refugees now predominantly flee from internal
armed conflicts, especially in Africa and other parts of the world
which have been "losers" in the process of globalisation.
The movements of asylum seekers also now include a mix of refugees
and economic migrants. In response to these changes UNHCR has
recently completed a global process of consulting states and civil
society on adapting the international protection regime to meet
the challenges of today.
1.3 During the December 2001 Ministerial
Meeting commemorating the 50 anniversary of the 1951 Convention,
States including the UK, reaffirmed their commitment to implement
the Convention and its 1967 Protocol fully and effectively. They
also agreed that UNHCR should work on complementing and strengthening
the basic Convention framework. These understandings are reflected
in the Agenda for Protection and the "Convention Plus"
initiative. The Agenda for Protection is a road map for UNHCR
and its partners to build on the Convention so that the international
protection regime will be able to meet today's needs of States
and refugees. Convention Plus is a practical system of measures
which seeks to implement Agenda for Protection principles. The
essence of Convention Plus is the development of special agreements
or arrangements which will promote fairer responsibility and burden-sharing,
make durable solutions more accessible within a shorter time framework
and reduce migratory pressure on asylum systems.
1.4 Convention Plus, by adding practical
elements, provides a basis for transforming ad hoc or unilateral
responses to the causes and effects of irregular migration and
forced displacement into multilateral special agreements. It is
often the lack of prospects for solutions or, in the absence of
local integration, possibilities for self-reliance, which cause
secondary movements of asylum-seekers and refugees to countries
further afield.
1.5 Special agreements could offer the possibility
to tackle protracted refugee situations and to expand the scope
of solutions in regions of origin. Since its formal launch in
January this year, Convention Plus continues to receive widespread
support from the members of UNHCR's Executive Committee.
1.6 Sections five, six and seven of the
International Development Committee's Inquiry into Migration and
Development shall be addressed here as these are of direct relevance
to UNHCR's mandate.
2. SUMMARY
2.1 The UNHCR's mandate responsibility is
to protect refugees as well as to devise durable solutions to
their problems. The intertwining of refugees, who flee as a result
of conflict or persecution, with so-called voluntary migrant flows
presents a serious challenge to the protection of refugees. This
problem is not insurmountable and these two flows can and must
be disentangled to allow for adequate protection of refugees.
Signatories to the 1951 Convention have specific responsibilities
to protect people within the forced migratory flow. The targeted
application of humanitarian and development assistance to regions
of tension and crisis can reduce the pressure on the UK's asylum
system.
2.2 There are a number of elements which
make up an effective international protection regime for refugees.
International co-operation is a prerequisite of any global system
to protect refugees. This is a multilateral issue and thus needs
agreement among States on how best to manage a shared system of
protection. The international community's efforts to address the
issue of international migration and development must be based
on the development of an appropriate normative, legal and multilateral
framework, building on existing instruments including the 1951
UN Refugee Convention.
2.3 The 1951 Convention was reaffirmed not
only by the 1967 Protocol relating to the status of refugees but
also, more recently, by a commitment to complement and strengthen
the basic Convention framework. The disentanglement of the forced
and voluntary streams of migration must be grounded within this
enhanced framework and has become known as "Convention Plus".
2.4 The Convention Plus framework aims to
provide lasting effective solutions for refugees. This is where
sustainable development can make a real difference. For the majority
of refugees, durable solutions can be found in regions of origin.
Not only geographically, where sustainable humanitarian and development
assistance in the regions of origin can create conditions for
people to remain, but in terms of stemming the root causes of
forced migration—pervasive human rights abuses and violent
conflict. Forced migration can be addressed by development.
2.5 An important caveat is that no matter
how much assistance is provided to the regions of origin of refugees
this cannot substitute for comprehensive asylum systems in countries
and regions of destination. Much can be done globally to share
the responsibility of hosting refugees and address the root causes
of these displacements but refugees who arrive spontaneously must
be protected.
3. CONFLICTS,
REFUGEES AND
MIGRATION (RESPONSE
TO SECTION
5 OF PRESS
NOTICE)
Can aid prevent violent conflicts and reduce the
number of international asylum seekers?
3.1 Aid strategies have to be regional,
targeting neighbours of the source country. These countries host
the bulk of refugees forced to flee conflict, so focussing development
assistance in this region can contain the spread of the impact
of conflict. Similarly, encouraging the repatriation of refugees
to post-conflict States, plus further assistance for reconstruction
once they return, can improve the stability of still volatile
States.
3.2 Refugees tend to come predominantly
from those countries which are most seriously affected by persecution
and armed conflict. An effective way to minimise the number of
refugees is to invest imaginatively and resourcefully in tackling
the causes of flight at their source. Refugee crises and migration
problems are compounded where narrowness of vision, perspective
and mandate isolate these issues from other areas of international
relations and co-operation, including in the areas of human rights,
democracy, good governance, trade and sustainable development.
3.3 Refugees and their host communities
are frequently excluded and marginalised because they are often
located in remote areas, and as refugees are not naturally part
of a host government's political constituency they are not included
in national development plans. Addressing this in an integrated
manner may serve to reduce violent conflict in regions of refugee
origin.
3.4 UNHCR has proposed two approaches within
which development for refugees and their host communities can
be addressed. First, in post-conflict situations in countries
of origin, UNHCR proposes an integrated approach known as "Repatriation,
Reintegration, Rehabilitation, and Reconstruction (4Rs)".
This approach brings together humanitarian and development actors
and funds. The aim is to create a conducive environment inside
the countries of origin so as to prevent the recurrence of mass
outflows and facilitate sustainable repatriation.
3.5 The second approach is for use in protracted
cases and involves the promotion of self-sustainability and, in
certain circumstances, the local integration of refugees in countries
of asylum. "Development Assistance for Refugees (DAR)"
aims to promote additional development assistance for refugees
focussing on self-reliance of the refugee community, burden sharing
with the host country and assistance to refugee affected areas.
In protracted cases "Development through Local Integration
(DLI)" would solicit additional development assistance where
a state opts to provide opportunities for gradual integration
of refugees. With both of these strategies, it is vital to recognise
refugees as agents of development. Too often refugees are treated
as passive instruments and their potential as resources for development
is unexplored in most schemes.
What are the differences in developmental terms
between voluntary economic migration and forced migration?
3.6 Forced migrants and voluntary economic
migrants have different rights based on the assumption that they
have different needs. All people should enjoy fundamental human
rights and freedoms without discrimination as laid down by the
1948 UN Universal Declaration of Human Rights. Signatories to
the 1951 Convention relating to the status of refugees have specific
legal obligations towards refugees with regard to assuring the
widest possible exercise of their fundamental rights and freedoms.
3.7 There is often an interaction between
the different migration streams, whether voluntary or involuntary.
Today, more than ever, refugees are part of a complex migratory
phenomenon in which people are prompted to leave their own country
by a combination of fears, hopes and aspirations that are difficult
to unravel. In many developing countries, the misery, hardship
and other degradations of all types are so awful and unbearable
that their citizens may have no choice but to vote with their
feet.
3.8 The immediate causes of refugee flows
are readily identifiable: serious human rights violations, persecution,
violent political, ethnic or religious conflict, or international
armed conflict. However, these causes often overlap with, or may
themselves be provoked or aggravated by, such factors as economic
marginalisation and poverty, massive unemployment, environmental
degradation, population pressure and poor governance. In developmental
terms, if the examination were to extend deep enough, the root
conditions of "voluntary economic" migrants and forced
migrants leaving their countries of origin are very often the
same the enduring lack of sustainable development.
4. SOUTH-SOUTH
MIGRATION (RESPONSE
TO SECTION
6 OF PRESS
NOTICE)
Most migration takes place within the South. How
important is this migration from a development perspective and
what can be done to improve the protection of migrants' rights?
4.1 Migration, both forced and otherwise,
tends to be within regions, with migrants and refugees often remaining
within the same continent. More than half of international migrants
move from one developing country to another. The poorest in the
world, the 1.2 billion people on less than US$1 a day, do not
have the resources to engage in inter-continental migration. All
states can expect to see significant levels of international migration
in the future. Much of this migration will continue to be within
the developing world and particularly within states, as the poorest
migrants and refugees find themselves unwilling or unable to move
long distances or even cross borders for either work or protection.
4.2 Traditionally, refugees have been linked
with humanitarian assistance, to the exclusion of access to development.
Regions which generate refugees receive emergency relief but this
is not commonly linked to long-term sustainable development assistance.
4.3 The intimate nature of the relationship
between displacement and development has been recognised by the
UNHCR and other agencies. In contrast to the established model
of refugee relief, assistance should be development-oriented from
the outset, and thereby enable beneficiaries to move quickly towards
self-reliance. Rather than focusing specifically on refugee camps
and communities, this new strategy emphasises the need for a focus
on refugee-populated areas. International assistance should not
be used to provide open-ended relief but to promote sustainable
development. Both refugees and the local population should engage
in, and benefit from, that process.
4.4 UNHCR believes that if refugees are
recognised as a potential asset, they can take on a role as "agents
of development". Through the support of livelihood activities
and promotion of self-reliance strategies, refugees can not only
contribute to the economic life of a region but also lesson their
dependence on aid and reduce tension within a refugee-populated
area.
4.5 The repatriation of refugees is also
an important element of state reconstruction. Returnee populations
are human resources for development if integrated into the development
objectives of transitional states. Because most returnee populations
are arriving in places where their homes and infrastructure have
been destroyed, from the moment they arrive they must work hard
to rebuild. They are often employed by international agencies
that can provide the necessary capital for reconstruction.
4.6 The Agenda for Protection, an inter-governmental
commitment, gave birth to these initiatives and, with international
co-operation, refugee rights under the 1951 Convention can be
secured while providing for their needs, through sustainable development
of refugee-generating regions. In recognising the potential of
refugees themselves, it is possible to stabilise States and reduce
the likelihood of further violent conflict. The long-term impact
of this will be the creation of countries where the conditions
are such that inhabitants will choose to remain.
Does aid to those countries which border conflict
areas act as a pull factor and increase the number of refugees?
4.7 It is highly unlikely that availability
of aid on the "safe" side of a border induces more people
to become refugees and enter that country. Potential refugees
frequently have very limited access to information on the availability
of aid in neighbouring countries. Indeed, by leaving their usual
place of residence, refugees cut themselves off from all the usual
support systems and social networks that they depend on to survive.
Few people would be prepared to put themselves in such a position
of vulnerability based on a very vague notion of increased assistance
elsewhere.
4.8 Of primary importance is the safeguard
of human life and dignity. Migration is triggered and steered
by a complex mix of push and pull factors. Forced migration is
very specific however. Push factors are fundamentally important
to refugees. The push factors include persecution and violence
which relegate considerations of pull factors to, at best, an
afterthought.
4.9 A key element of the global refugee
protection regime is access to territory for the purposes of protection.
Development assistance to countries reluctant to open borders
to potential refugees can build the host's capacity and thereby
encourage it to allow access to sanctuary within its territory.
People attempting to flee their country but denied an exit route
are particularly vulnerable to persecution and violence. Sustainable
development can assist in the process of building the protection
capacity of refugee-hosting countries. As much as is possible,
such assistance should be distributed equitably amongst the neighbours
in order to allow for maximised burden-sharing.
4.10 Indeed development assistance can help
to build the capacity of a host to such an extent that, in protracted
refugee crises, secondary refugee flows are stemmed. If effective
broad-based development assistant is targeted to the appropriate
hosting countries and regions, further refugee crises can be prevented.
What should the UK (DFID) role be in relation
to south-south migration?
4.11 Effective protection for refugees must
be provided wherever refugees are and this must be combined with
a renewed resolve to find durable solutions rather than palliatives.
States must use all appropriate means at their disposal, in the
context of their foreign, security, trade, development and investment
policies, to influence developments in refugee-producing countries
and regions in the direction of greater respect for human rights,
democratic values and good governance.
4.12 As previously noted, south-south forced
migration occupies a far greater proportion of total forced migration
flows than does south-north. In spite of this, international focus
often rests on the latter leaving the regions which host south-south
refugees unsupported and marginalised. One product of the Agenda
for Protection initiative is that donor countries including the
UK have committed themselves to sharing the responsibility of
protecting refugees wherever they may be. In the context of supporting
hosts in regions of refugee-generation, this will involve increased
targeted development assistance which has the potential to contain
the spread of conflict, reduce the likelihood of reoccurrence,
and create conditions in countries in the south which allow inhabitants
to choose to remain.
5. DEVELOPMENT
COHERENCE AND
POLICY ON
MIGRATION (RESPONSE
TO SECTION
7)
How consistent (in both a national and international
context) are donor governments' approaches to migration with their
policies on development cooperation, humanitarian relief, and
refugee protection?
5.1 The wide-ranging migration control measures
hitherto introduced by many donor states are blunt instruments,
which, failing as they frequently do to distinguish between refugees
and ordinary migrants, have served to seriously undermine the
foundations of the refugee protection regime.
5.2 While there are obvious inter-linkages
between refugee and migratory movements, they nevertheless each
raise fundamentally different concerns and require distinct policy
responses and legislative measures. Donor government's immigration
policy and practice have important implications for asylum. There
are a number of policy measures and trends that states use, which
impact migration and refugee protection.
— "Non-arrival policies"—aimed
at preventing improperly documented aliens from reaching donor
states. Examples of such measures include visa and carrier sanctions,
and the use of airline staff as surrogate immigration control
officers.
— "Diversion"—policies
designed to shift the burden of responsibility for asylum seekers
to other states. For example, the Dublin Convention confirms the
right of EU member states to return asylum seekers to "safe"
third countries. In Australia, the policy of diverting unwanted
asylum-seekers to other countries, in particular the Pacific island
territories of Nauru and Manus, is known as the "Pacific
Solution".
— "Restrictive application of
the 1951 convention"—"defining away" from
the scope of the refugee definition for certain categories of
refugee claimants, for example victims of persecution by non-state
actors and low recognition rates for victims of child-specific
persecution.
— "Deterrence policies"—such
as detention, denial of means of subsistence, and restrictions
on family reunification even after granting refugee status.
5.3 The cumulative impact of such measures
represents the incompatibility of approaches to migration and
refugee protection. The most fundamental element in the international
regime of refugee protection is access to territory for the purposes
of protection. Non-arrival measures in particular impede access
to sanctuary.
5.4 The "non-arrival" or interception
policies are aimed principally at combating irregular immigration,
but they nonetheless also pose formidable barriers for asylum-seekers
to access a jurisdiction where they can seek protection. It is
in this area where there is substantial contradiction between
donor governments' commitments to the 1951 Convention and their
policies to control migration.
5.5 Refugee protection is first and foremost
about meeting the needs of vulnerable and threatened individuals.
These needs, of course, have to be accommodated and addressed
within a framework of sometimes competing interests, rights and
expectations of states. There is consensus among governments,
academics, international organisations and non-governmental advocacy
groups that this is best accomplished by mobilising joint efforts
towards a comprehensive approach to international migration. UNHCR
has put forward a number of recommendations in its discussion
paper "Reconciling Migration Control and Refugee Protection
in the European Union: A UNHCR Perspective" (2000).
These include the following reasoned policy
recommendations for addressing the inherent tensions between non-arrival
policies on the one hand, and basic principles of refugee protection
on the other:
— In implementing their visa policies,
states should give due humanitarian considerations to the particular
situation in which persons who have to flee from persecution in
their country of origin find themselves. Such persons will very
often have serious difficulties in meeting visa prerequisites
such as the possession of a valid national passport, monetary
sums to cover the costs of their stay abroad and their return
travel, or family ties in the country of intended destination.
For example: "applications from Zimbabwe fell by 61% in the
Q1 following the introduction of a visa regime. The proportion
of initial decisions granting asylum in Q1 fell to 7% from 11%
in Q4 2002, partly due to fewer decisions being made on Zimbabwean
cases. (Home Office, Asylum Statistics: firstt Quarter 2003)
— As a complement to the easing of
visa requirements for persons in fear of prosecution in their
country of origin as suggested above, consideration could be given,
in certain situations, to the possibility of processing asylum
applications within countries of origin. "In-country processing"
of asylum applications of persons in fear of persecution by state
of origin is, beyond dispute, fraught with many difficulties.
It may, however, be feasible where the feared harm emanates from
non-State agents and there is no state complicity, but the state
is unable to provide the necessary protection in any part of the
country.
— Airlines and other carrier personnel
are not authorised by international law to either make asylum
determinations on behalf of states or to assume immigration control
responsibilities. They are neither qualified to identify cases
which might come within the purview of international refugee instruments,
nor inclined—in the light of penalties on their corporate
employer—to permit transport of those to whom the state
might otherwise extend protection. UNHCR therefore urges states
not to enforce carrier sanctions in relation to the transport
of undocumented or inadequately documented passengers who, upon
arrival in the country of destination, submit an asylum claim
which is subsequently accepted for consideration.
— UNHCR believes that potential flow
of large numbers of asylum-seekers which states attempt to stem
by means of visa policies and carrier sanctions can be properly
addressed through expeditious consideration of asylum claims by
trained and qualified state authorities, along with co-ordinated
and effective measures of return of those determined not to be
in need of international protection.
Should DFID adopt a less neutral approach and
develop a policy of development-friendly migration? If so, how
should it fit with DFID's own County Assistance Strategies and
how should DFID promote such a policy across government?
5.6 An effective global system of refugee
protection and the provision of durable solutions for refugees
may be established, if the international community's efforts are
based on appropriate normative, legal and multilateral frameworks,
building on existing instruments including the 1951UN Refugee
Convention.
5.7 There is a continued need to bridge
the gap that has traditionally existed between short-term humanitarian
programmes and longer-term development initiatives, both in refugee-hosting
countries and in countries of origin to prevent displacement,
enable return and reduce the possibility of further displacement.
To bridge this gap, joint planning and programming is required
between humanitarian and development organisations and governmental
departments. This will require transitional and complementary
sources of funding.
5.8 Every effort must be made to ensure
that refugees, returnees and other persons of concern can effectively
exercise their productive capacities, thereby enabling them to
contribute to the development of the countries and communities
in which they reside. Development initiatives, which harness the
potential capacity of refugees, must be consistent with principles
of refugee protection and must not prevent people from gaining
access to national asylum systems.
November 2003
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