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12 June 2005

 

Toward a rights-based urban policy

 

Africa Middle East Refugee Assistance (AMERA)

UK-registered charity with a refugee legal aid program in Egypt

 

Frontiers (Ruwad)

Lebanon-registered non-government organization

 

 

This commentary was prepared in May 2005 as part of an ongoing reassessment of UNHCR policy toward refugees in urban areas. It was submitted in response to a UNHCR request for NGO comment.

Organizational perspective

We are pleased to submit these comments, which we hope will be of assistance to the Office of the High Commissioner in revising policy relating to refugees in urban areas. We are especially encouraged by UNHCR’s embrace of a rights-based approach (RBA).

 

AMERA and Frontiers are rights-based NGOs focused on the protection of refugees in the Middle East. AMERA operates a legal aid and counseling program for refugees and asylum-seekers in Cairo, Egypt. Frontiers offers legal aid and counseling to refugees and asylum-seekers in Beirut, Lebanon, and also conducts research and advocacy on behalf of refugee rights in Lebanon.

 

Foundations of a rights-based approach

A challenge in developing a rights-based approach to UNHCR urban policy is the fact that the category “refugees in urban areas” does not exist in international law. 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 1951 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."

 

A rights-based approach should therefore begin with the principle that refugees have freedom of movement and the right to choose their place of residence within their country of asylum. Living in an urban area or for that matter in a rural area does not directly affect the rights that a refugee should be able to enjoy. Nor does it affect UNHCR’s mandate obligations. We believe the terminology shift from “urban refugees” to “refugees in urban areas” is welcome as a means of highlighting the fact that place of residence does not define a separate category of refugees, nor a separate category of rights.

 

This does not mean there should not be an urban policy, but it means that we should carefully delimit its purposes. A rights-based urban policy will focus on those issues in which refugees in urban areas are actually differently situated from their rural counterparts. For example, economic differences in urban areas may naturally lead to a different approach to promoting ‘self-sufficiency’. There are more sources of employment in a city and often more money circulating. Public health concerns may be different in urban areas. Where such differences exist, having an urban policy makes sense.  UNHCR policy will neither be rights-based nor effective if it aims to prevent refugees from migrating to cities. Rural to urban migration has been going to for hundreds of years on all continents, and is a natural expression of refugees’ right to choose their place of residence.

 

In the past, UNHCR policy too often tended to treat urban settings as merely the opposite of camps settings. The phrase “urban refugee” came to become equated with non-camp refugees. There was, after all, no corresponding “policy on rural refugees.” Since in many countries the standard refugee policy administered by UNHCR was camp-based, urban refugees were treated as exceptions, as people who opted out of the norm, and perhaps more negatively as people who were resisting official policy. Urban refugee policy therefore focused extensively on the issues of “spontaneous arrivals” and “irregular movers,” terms indicating that refugees in urban areas were violating official norms.

 

Perhaps the greatest manifestation of the camps-focused approach to urban policy has been the rural-urban dichotomy in refugee status determination (RSD). In much of Africa and in other regions as well, rural refugees generally have their legal status recognized through prima facie RSD. Urban refugees, on the other hand, generally have their status recognized through individualized RSD.  Often, two refugees of the same nationality, living in the same host country, will find themselves subject to two very different procedures. 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.

 

Refugee status determination is in many cases just the beginning of individual case assessment in urban areas. A refugee in an urban area is in many countries subject to an extensive procedure of individual scrutiny including an examination as to whether s/he has a “legitimate” reason for leaving the rural camp. We would argue that refugee policy has too often featured a rural-urban dichotomy in procedures in which refugees in urban areas are subject to extensive scrutiny and suspicion.

 

A rights-based policy must be founded on refugee freedom of movement, among other rights, and therefore cannot be linked to a system that confines refugees to remote camps. Neither refugee legal status nor the procedures for determining legal status should be affected by the location where a refugee chooses to live. RSD procedures and policies should in principle be adopted throughout a host country so that two similarly situated refugees are subject to the same procedure no matter where they choose to reside.

 

Reducing reliance on individual RSD

As noted above, one of the definitive features of current and past UNHCR urban policy has been extensive reliance on individual refugee status determination (RSD). This poses two related challenges. First, UNHCR’s RSD procedures fail to meet UNHCR’s own standards of fairness, which increases the risk that refugees in bona fide danger of persecution will be errantly refused protection. Second, individual RSD drains precious resources.

 

The first problem, lack of fairness in UNHCR RSD, has been discussed extensively elsewhere and is the subject of a separate ongoing process of policy re-assessment at UNHCR. For more background, we would refer to www.rsdwatch.org, which includes a bibliography of detailed studies of UNHCR RSD. Because of the rural-urban dichotomy in refugee status determination, the risk of errant rejection falls disproportionately on refugees in urban areas.

 

The second problem, strained resources, is a concern for two reasons. First, lack of resources hampers UNHCR’s capacity to improve its RSD procedures. Second, the extensive reliance on individual RSD diverts UNHCR’s human and financial resources away from other protection and assistance activities. Since UNHCR’s urban policy has generally been predicated on individual RSD, UNHCR’s efforts to improve the welfare of refugees in urban areas have been essentially handicapped. Because RSD requires so many resources, there are fewer protection officers available to train police in refugee law, facilitate children’s registration in school, or promote refugee rights with government officials. There is less money available to expand social and economic services.

 

We believe that one of the major necessary steps in improving urban policy is to reduce reliance on individual RSD by expanding the use of prima facie or group-based mechanism of refugee status determination. Such procedures are common place in camp-settings, and can also be applied in urban settings.

 

In Egypt and Lebanon over the past five years, between 75 and 90 percent of the asylum-seekers came from countries with well-known conditions of widespread human rights abuses and violence: Sudan and Iraq. Asylum-seekers from these countries were routinely granted protection on a prima facie basis in Uganda, Kenya, and Iran. Yet when asylum-seekers from these countries arrived in urban settings in the Middle East, they were subject to individual RSD. We believe it would have prevented dangerous errors and better used UNHCR resources if they had been recognized on a prima facie basis. UNHCR might have maintained individual RSD for the remaining asylum-seekers who come from a more diverse set of backgrounds. But this small remaining caseload would have been far more manageable, and far less resource intensive.

 

 

 

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