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- Program in Refugee and Asylum Law
By Michael Kagan
Associate Professor of Law at the University of Nevada, Las Vegas
In 2013, around one in five people who sought individual refugee status determination applied not to a government, but to the UN Refugee Agency (UNHCR). While UNHCR reports that individual asylum applications as a whole rose globally from 2012 to 2013 by 15 percent, the burden of that increase was disproportionately absorbed by UNHCR, with a 61 percent increase in individual applications to UNHCR offices. UNHCR received approximately 195,000 new RSD applications in 2013 while Germany, the largest government RSD system, received 109,600. This shift calls for UNHCR’s role as a refugee status adjudicator to receive considerably more attention than it traditionally has.
To understand why UNHCR RSD deserves more attention, consider the amount of energy spent by lawyers, advocacy groups, academics, government officials and courts on managing and improving the U.S. asylum system. In 2013, the U.S. Asylum Office and Immigration Courts combined decided less than half as many refugee cases as UNHCR (30,800 v. 68,354). But a simple Google search for “U.S. asylum system” produces 97 times more hits than “UNHCR RSD system.” This does not mean that the American system is unimportant. But it cries out for additional attention to be paid to the UNHCR RSD system.
One reason why UNHCR RSD has received comparably little attention is that UNHCR conducts RSD in about 60 countries in the global south, often in countries where civil society and media are less robust. As a result, many matters of public concern receive much less attention than comparable issues in the developed world. But there is another reason why UNHCR RSD is often ignored: well-established paradigms of international refugee law and policy do not easily capture the nature and scale of UNHCR’s RSD work. There were nearly no published reports on the issue until the 1990s. The usual assumption is that RSD should be done by a government, even though UNHCR has been doing this work since 1951. UNHCR itself also displays considerable ambivalence about the subject. RSD is scarcely visible on UNHCR’s own website. It’s not listed on the front page under “What We Do.” Nor does it appear on the first page under “Protection.”
In July, UNHCR Director of International Protection, Volker Turk, briefly discussed UNHCR RSD in a speech, where he noted with alarm the surge in applications:
One thing is clear: without more robust State engagement, resources, and alternatives to individual processing, dealing with such a high number of individual RSD applications registered by UNHCR is not sustainable. … [I]t is crucial that Governments assume greater responsibility for RSD.
It is possible to use data from UNHCR’s most recent statistical report to create a rough measure that shows the degree to which the number of new applications is exceeding UNHCR’s capacity. By comparing the number of RSD decisions reached in a year with the number of new applications filed in the same year, we can produce a rough measure of the balance between an RSD system’s capacity and its caseload. I will call this the Decision Capacity Ratio. A ratio of 1.0 would mean an RSD system is able to decide cases as quickly as they come in. But a ratio less than 1.0 would mean that the number of applications is exceeding decision-making capacity.
For UNHCR offices, the Decision Capacity Ratio in 2013 was 0.35. That means UNHCR is falling behind, and falling behind fast. Backlogs will continue to grow, with asylum seekers possibly waiting years for a decision. The surge in cases also is likely to increase the workload and pressure on UNHCR’s staff, and create an ever-greater risk that quantity will displace quality as an organizational priority.
UNHCR is by no means alone in facing this problem. RSD applications also increased in large government systems in 2013. In fact, some of the most well-resourced asylum systems in the world also appear to be falling behind. Germany’s Decision Capacity Ratio was 0.44, only slightly better than UNHCR’s. The US Asylum Office was actually doing worse than UNHCR, with a ratio of 0.27.
Clearly, Turk is right that the present pace of RSD applications is unsustainable, unless UNHCR can respond to it with increased resources for RSD, and better ways to use those resources. We do not know for how long this rate of applications will continue, however. But the real question is how UNHCR will react so long as it does. Since individual RSD is highly resource intensive, one immediate step might be to closely examine whether it really is needed for all groups. Turk implied such solutions by referencing “alternatives to individual processing.” UNHCR RSD is concentrated in a relatively small number of counties, with 85 percent of applications coming from just 10 places. This concentration means that finding an alternative route to protection for certain specific groups can relieve UNHCR’s RSD burden quite significantly.
Consider this example: 50,000 individuals originally from Myanmar applied for RSD in Malaysia, constituting one in four RSD applications to UNHCR globally in 2013. UNHCR’s office in Malaysia had a backlog of 42,000 cases at the end of 2013, and had decided only about 15,500 during the year. This means that at the 2013 pace, it would take UNHCR nearly three years to clear the backlog, and that is only if no one else applies (which is unrealistic). In a nutshell, there is a large RSD crisis in Malaysia, which forms a substantial part of the crisis that UNHCR faces worldwide.
But UNHCR also reports (on page 30 here) that people from Myanmar globally enjoy a recognition rate at or over 90 percent. This raises the question of whether UNHCR could expedite RSD for this group, recognizing them quickly without the normal level of scrutiny. Many governments have set up expedited means of rejecting asylum claims for being manifestly unfounded (see Accelerated Procedures for Asylum in the European Union and ECRE’s Report on the Application of the Dublin Regulations). UNHCR’s RSD crisis may call for the opposite—finding an expedited means of accepting applications that are manifestly well-founded. UNHCR is currently considering a draft set of guidelines covering various forms of prima facie and group recognition, which when finalized may set a useful foundation for such approaches for specific groups of asylum-seekers.
Hope may also be found in the fact that the rate of RSD applications to UNHCR has historically been quite volatile. In only four out of the last 15 years has the number of applications exceeded 100,000. In 2012, 111,000 people applied to UNHCR RSD – but UNHCR actually was able to close more cases than it opened. While 2013 was a high point with a rate of close to 200,000 applications, it is too early to assume that applications will continue to be filed at this rate in perpetuity.
Sharing Responsibility, Sustainably
UNHCR’s long held position has been that RSD is a government responsibility. This is unassailable as an ideal, but I would suggest that it will not be terribly helpful to UNHCR as a guiding principle in meeting its real world challenges with RSD.
Much of what UNHCR does for refugees around the world is theoretically a government responsibility, and yet UNHCR still is often playing the lead role in addressing refugees’ housing, education, health and other needs. For that matter, if governments always lived up to their responsibilities, there would be no refugees at all, since everyone would enjoy protection of a government. That is not the world in which we live. The fact that governments are often limited in what they are willing or able to do for refugees is a significant reason why UNHCR exists in the form that it does.
UNHCR’s RSD procedures have long been flawed, and fall short of the due process standards that UNHCR itself urges for RSD. UNHCR offices generally do not have an independent appeal mechanism, have only recently begun to issue written explanations of rejections, and usually withhold from asylum-seekers transcripts of their own interviews and other evidence. And yet, relative to many governments, UNCHR is a fairly favorable adjudicator for asylum-seekers on average. Its overall recognition rate in first instance cases was 83 percent in 2013, compared to 44 percent for government RSD systems. Despite its overstretched capacity and flawed procedures, it is far better on average for an asylum-seeker to have his or her case adjudicated by UNHCR than by, say, the Government of Greece (recognition rate 4 percent), or Japan (2 percent), or Hungary (8 percent), or Russia (2 percent).
UNHCR has committed itself to shifting away from its traditional focus on refugee camps to so-called urban refugees, for whom UNHCR has recognized that legal status is often a critical question. Rather than formalistically demand that governments do this work, it may be more fruitful to try to identify a shared responsibility approach that will best advance refugee rights in practice. As I have argued at greater length elsewhere, shifting some protection responsibilities to UNHCR can provide a more solid political foundation for refugee protection in some countries. UNHCR can perform some (though not all) necessary protection functions well, and host governments may want to show that their refugee burdens are being shared with the international community.
UNHCR needs to move past its longstanding ambivalence toward RSD. Much like governments, UNHCR today is confronting a refugee status determination crisis. But this is not a crisis that can be solved by simply calling on governments to live up to their responsibilities. I would suggest that UNHCR address it practically and methodically, by asking several questions for each country and population where it conducts RSD. For example:
If the answers to these questions are ‘no,’ UNHCR has good reason to question whether it should be doing this work. But if the answers to these questions are ‘yes,’ UNHCR RSD may be an effective protection tool that UNHCR should embrace like any other part of its work. The strains and challenges are real, but on the frontlines, UNHCR RSD is often an effective solution for a very imperfect world.
Unless otherwise stated, all figures in this post are taken or derived from Table 10 of the UNHCR Global Trends 2013 Report, and for previous years from UNHCR’s annual Statistical Yearbooks and Global Trends reports.
For additional analysis on these statistics, see Professor Kagan’s post on his blog entitled The Statistics Are Coming (so here are some caveats).
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