A rights-based approach to “irregular” movement and the definition of “protection”

The “irregular mover” question has long been among the most controversial aspects of urban refugee policy. A rights-based approach must, at a minimum, define irregular movement restrictively in accordance with the definition endorsed by the Executive Committee (EXCOM). A refugee should not be considered an irregular mover if s/he merely passed through a country where protection might have been available in theory. Unless a refugee actually had protection in a first country of asylum, s/he should not be considered an irregular mover. EXCOM Conclusion No. 58 (1989).

In order to apply the EXCOM standard, it is essential to clearly define effective protection. Currently, UNHCR offices tend to regard any country where there is basic protection from non-refoulement to be sites of effective protection. This limited approach will tend to penalize refugees who move on from countries where their basic security is protected, but where their ability to find legal work, send children to school, or access healthcare is restricted. UNHCR policy cannot be considered rights-based if it resists refugee choices to seek to leave countries where essential social and economic rights are severely restricted or non-existent.

UNHCR’s policy toward irregular movement has been predicated on the assumption that protection programs such as resettlement act as pull factors, attracting refugees who do not really need to migrate. We believe that this is an over-broad and under-tested presumption. UNHCR long believed that the resettlement programs operated in Cairo drew increased numbers of asylum-seekers from Sudan and Somalia. Yet today there continues to be an influx of Sudanese seeking asylum even a year after the temporary suspension of RSD reduced resettlement opportunities in this country.

It is essential that UNHCR state clearly that its mandate is to promote refugee protection; UNHCR is not responsible for migration control. The Refugee Convention makes no mention of irregular movement. Part of protecting refugee rights is recognizing refugees who make rational choices out of perceived self-interest, including the choice to move on to a new country when they cannot meet basic needs in their first country of asylum.

We therefore recommend that UNHCR limit its application of the irregular mover principle in two key ways. First, effective protection should be defined as enjoyment of all human rights, including social and economic rights, not just non-refoulement. Hence, assessment of whether a refugee moved “irregularly” should include, among other things, an assessment of whether s/he had the right to work as guaranteed in the Refugee Convention after three years of residence. It should also include an assessment, where relevant, of whether children had effectively enjoyed the right to education on par with nationals, as guaranteed by several bodies of international law, and access to healthcare. Beyond legal standards, UNHCR offices should adopt flexible standards that reward refugees who migrate as part of an attempt to increase their self-sufficiency; it should be recognized that irregular movement may be an attempt by a person to escape dependency or destitution, which should also be an objective of UNHCR policy.

A second approach on the irregular mover issue is to stress that even if a refugee migrates irregularly, s/he is still a refugee. Only benefits that are beyond the minimums prescribed by law, such as resettlement, should be restricted. UNHCR should still promote his or her rights, and should not withhold any assistance if doing so would prevent him or her from leading a dignified life. UNHCR should facilitate legal recognition as with any other refugee. Finally, since application of the irregular mover rule is in effect a decision that some other country should be responsible for protection, UNHCR should promote the refugee’s safe and legal return there. In short, UNHCR may work to reduce incentives for economic irregular movement, but it should not punish irregular movement.

Promoting government responsibility

We would close our comments by stressing that a rights-based approach to refugee protection should emphasize government protection, rather than UNHCR assistance. The key to self-reliance for refugees is their ability to exercise their basic rights in their country of asylum. Dependency on UNHCR assistance or resettlement is in most cases a result of restrictions on refugee exercise of key rights.

For these reasons, UNHCR should consider its primary mission to promote refugee access to rights. Other steps, such as direct assistance or resettlement referral, are effectively substitutes for the host government’s responsibility and should be undertaken only in emergencies or as a last resort.

We are not advocating that UNHCR stop its involvement in providing subsistence allowances or funding educational or healthcare programs as needed. To the contrary, these programs will often need to be expanded because so many governments exclude refugees. However, we are advocating that UNHCR not immediately launch such programs whenever it finds refugee needs. A first course of action should be to explore the possibility of refugee inclusion in systems that already exist for nationals of a host country and promote donor assistance to these host government institutions.

Often, refugees in urban areas may be entitled in theory to government services, but may be excluded in fact due to administrative confusion or lack of knowledge. UNHCR can be instrumental in removing such barriers and facilitating refugee access, without becoming itself a direct provider of services in all cases. UNHCR should more frequently engage local lawyers to challenge regulatory obstacles that block refugees from accessing such services. In many countries, there are substantial social and economic support systems that could assist refugees that have been hidden or ignored. UNHCR should not easily accept legal prohibitions of refugee access to necessary rights, and should be willing to push governments to live up to their international obligations. There should be particular attention to the right to healthcare, the right to education (including secondary and tertiary education), and the right to work.

Conclusion

We hope that these comments will be helpful to the High Commissioner in revising his policy in urban areas, and look forward to continued public dialogue on these and other matters.

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