Contemplating a Forcible Return to Syria

Mahalia Kahsay
Third-year student at the University of Michigan Law School.

Youssef* arrived in Lebanon with his family in 2014 after fleeing violence in Syria. After multiple evictions, his family continues to face a lack of stability and safety. As of February 2018, they are still waiting—unable to return home to Syria or restart their lives permanently in Lebanon. New calls for the “voluntary return” of refugees like Youssef to Syria have begun circulating in the news as government officials discuss long-term solutions.

Meanwhile, the Hajj family arrived in Canada in 2016 after living in limbo in Lebanon for several years. They received a year of financial and social support from both the Canadian government and generous Canadian sponsors.

While promising for a lucky few, resettlement alone will not solve this refugee crisis. The Syrian Civil War entered its eighth year on March 15 of this year. To date, the war has created over 5.4 million Syrian refugees recognized by UNHCR and displaced over 12.5 million total Syrians worldwide. For UNHCR recognized refugees applying for resettlement abroad, recognition of refugee status is simply the first step. Resettlement spots are few; less than 1% of all refugees will be resettled to third countries. And the United States’ continual attempts to ban Syrian refugees through travel bans creates uncertainty regarding the world’s formerly most ambitious resettlement country. The United States admitted 12,587 Syrians in FY 2016, 6,557 in FY 2017, and a dismal forty-six since October 2017. In contrast, in 2016 Germany granted 294,710 Syrians protected status, Sweden 44,905, and Canada admitted 33,266.

Despite high rates of refugee applicant recognition in certain countries, the number of Syrians fleeing continues to grow, especially in Lebanon, Jordan, and Turkey. Recent talk of “voluntary return” to Syria has alarmed human rights advocates. The 1951 Refugee Convention is clear: once refugee status is recognized, cessation under Article 1(C)(5)-(6) requires a two-step process. First, decision makers must show a relevant change of circumstances. Even then, refugee status “may be ended if (but only if) it is established that protection is in consequence now available to the refugee in her country of origin.”[1]

In BA v. International Protection Appeals Tribunal, the High Court of Ireland considered situations in which an applicant’s escape from “mass murder, genocide, or ethnic cleansing” might have caused sufficient trauma to provide compelling reasons not to return regardless of changed conditions. While this case in particular did not involve applicants fleeing from war, the court looked to the UN Handbook’s reference to humanitarian principles against such return. The Handbook explains that a person who has suffered under “atrocious forms of persecution” should not be expected to return, even despite a regime change, because “this may not always produce a complete change… in the mind of the refugee.”

A war laden with chemical weapon attacks and atrocious violence against civilian populations should qualify for consideration under this humanitarian principle. Recognized refugees should under no circumstances be asked to repatriate to Syria; not now, and potentially not in the future.[2] Not only does the war in Syria rage on, but the risk of harm, persecution, and death at the hands of the Assad regime continue as well, evidenced by recent stories of atrocities in Douma. Even with changed circumstances, the Refugee Convention recognizes the high stakes involved in uprooting a refugee who has already begun to build her new life. With such a high showing required to demonstrate changed circumstance in a refugee’s original country of origin, does the Convention not protect recognized refugees from repatriation to a war-torn country all the more?

* name changed for safety

[1] Hathaway & Foster, The Law of Refugee Status 476 (2014).

[2] The 500 refugees who voluntarily returned in April 2018 do not demonstrate the legality or safety of return of Syrian refugees en masse; UNHCR did not facilitate this return and continues to advocate against forcible return.

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