Guest Post: African Migrants to Israel Face Refoulement, Discrimination- by Theodore Baird

I used to be a refugee. In Cairo I had a refugee card. Now I am confused. Am I a refugee or am I with the Israeli government? I just want to know what I am. I need a good visa, a paper to work or to do something good. I don’t get help in Israel, but if I am a refugee, shouldn’t I get help?

Furst-Nichols, Rebecca & Jacobsen, Karen (2011) “African Migration to Israel: Debt, Employment and Remittances,” Tufts University and Feinstein International Center, January 2011: Page 15.

On Wednesday January 2^nd 2013 a ceremony was held commemorating the completion of the main section of the border fence between Israel and Egypt. The total length of the border fence is 230 km and reaches a height of 7 meters in parts. The cost of the fence is 1.4 billion shekels, or around 372 million US dollars. It is made of 44,000 tons of building material. It took two and a half years to build. The fence has barbed wire, a dirt road and patrol path, cameras, and radar. The final piece of the border fence is due to be completed in May 2013, and is located near the Taba crossing in a mountainous region near Eilat. The terrain is difficult and is a complex engineering project. Netanyahu reiterated that he is committed to returning Sudanese and Eritrean migrants regardless of international law on non-refoulement. Israel does not have diplomatic relations with either Sudan or Eritrea. Sudan is technically an enemy state of Israel.

Earlier, in July 2012, Netanyahu declared the main goal of the fence and Israel’s policy towards asylum-seekers: “The goal is to turn the tables, and take all necessary actions to have the number of illegal immigrants that leave Israel be larger than the number entering Israel.” Netanyahu was politely reminded by UNHCR in Geneva that returning Eritrean migrants would threaten their lives, and that no country has returned Eritrean refugees from their territory.

Echoing the fears over foreign ‘infiltrators’ in the south, Netanyahu declared that an identical border fence would be built along the Syrian border in the Golan Heights. Fears over jihadists armed with chemical weapons or pro-Palestinian fighters crossing into Israel from Syria, not asylum-seekers, instigated the plans to construct the fence. Armed with the success of preventing African asylum-seekers from entering Israel in the south through the lawless Sinai, the new border is intended to prevent the entrance of foreign fighters coming from Syria or exodus resulting from the collapse of the Assad regime. If Israel completes the fence project along the Golan Heights, it will be completely fenced in. The Golan-Syria border fence would span about 70 km, with a height of five meters, and fortified with trenches, barbed wire and a patrol road, similar to the Sinai-Negev border in the south.

In 2005, Sudanese refugees in Egypt protested against their poor treatment by Mubarak’s regime. The protest was ended violently by the government and the environment in Egypt for Sudanese refugees became increasingly hostile. In response, Sudanese refugees migrated to Israel from Egypt. Since 2005, the number of African refugees entering Israel has increased to more than 60,000, with 17,000 people crossing in 2011. The southern border fence is deemed a success, with 36 asylum-seekers crossing in December 2012, compared with 2153 entering the previous year. Netanyahu is campaigning for national election on January 22^nd. Netanyahu reiterated his commitment to return those asylum-seekers who have entered Israel already: “Just as we stopped completely the infiltration into Israeli cities, we will succeed in the next mission - the repatriation of tens of thousands of infiltrators already in Israel to their home countries.”

Photo by: Oren Ziv/Activestills.org

On October 14^th, 2012, Sudanese refugees protested against the building of prisons to detain African refugees, shouting ‘We are refugees, not infiltrators!’ and ‘We need rights right now’. According to the recent Anti-Infiltration Law from January 2012, anyone crossing from Sinai is deemed an ‘infiltrator’ by the Israeli state and is treated as a threat. The original law is the 1954 Prevention of Infiltration Law, which was amended in January 2012, to define all irregular border-crossers as ‘infiltrators,’ subject to detention and deportation, with limited or no access to the asylum procedure. Asylum-seekers may be detained for three years or more without charge or access to legal representation. Punishing asylum-seekers for unlawful entry is illegal under international refugee law.

Amendments to the Anti-Infiltration Law include new legislative initiatives as well as a bill from 2006. The amendments which passed on 10 January 2012 include: preventing the sending of remittances, taxing employers of asylum-seekers, monthly deposits for each asylum-seeker employed to ensure they have funds to leave Israel, expanding police authority over legally resident asylum-seekers, preventing the appeal of a deportation order, and barring asylum-seekers from filing lawsuits in Israeli courts. These amendments are designed to increase the difficulty in employing asylum-seekers and to make incorporation into Israeli society difficult in order to pressure asylum-seekers to leave Israel.

Israel does not recognize refugees, and only rarely processes refugee claims. The public as well is skeptical of African migrants. In a poll from 2012, a majority (52%) of Jewish Israelis regarded Africans as a ‘cancer’ on society. Only 19% of Arab-Israelis considered African migrants to be harmful to society. Most of the Jewish Israelis responded that they did not live near refugees or lived only near a few.

In preparation for enforcing the new law, a new detention center is being built which can house up to 30,000 people, and hundreds have been deported back to South Sudan. After South Sudan announced independence, hundreds of Sudanese migrants were returned there from Israel in 2011. After an Israeli court judged that 1500 South Sudanese were safe to return home, they were rounded up. Numerous difficulties involved in returning migrants have been cited by human rights organizations.

Sinai is extremely dangerous to transit, with multiple evidence pointing to hostage-taking, abuse, and torture of refugees for money by unscrupulous traffickers. Refugees have been criminalized in Israel, in direct contravention of international refugee and Israeli domestic law, and are also vulnerable to torture and trafficking in Sinai. Survivors of torture and abuse are being detained in Israel since the implementation of the new laws in June 2012. Dozens of Eritrean and Sudanese migrants have been prevented from entering Israel or from asking for asylum, and have been illegally refouled back to Egypt, into the lawless Sinai. In July, 40 Eritreans were detained just inside the border and then forcibly returned to Egyptian authorities. Others waited at the fence itself and provided with some water and food by NGOs, and some waited inside drainage pipes in the area to escape the difficult weather. Those crossing Sinai face serious abuse at the hands of traffickers holding them for ransom.

For more information see:

Physicians for Human Rights – Israel www.phr.org.il

Hotline for Migrant Workers www.hotline.org.il

African Refugee Development Center (ARDC) www.ardc-israel.org

Theodore Baird is a PhD fellow at the Danish Institute for International Studies (DIIS) and Roskilde University (RUC). His thesis investigates refugee smuggling from Sudan and Somalia to the Middle East. More information about his project can be found on the DIIS website at: http://www.diis.dk/sw109325.asp

---

Happy Ending for Berlin Refugee Strike?

Image via Der Tagespiegel

The hunger strike of asylum seekers/ refugees at Berlin's famous Brandenberg Gate has come to an end after 8 days, following a long discussion yesterday evening between strikers and politicians. This is a highpoint but hopefully not the conclusion, of over a year of hardcore activism on refugee issues in Germany.

The protest, which followed last month's march throughout Germany, aimed in general to call attention to the plight of refugees in Germany but it also had several key specific demands (a full list can be found here.) Namely, to stop deportations, close refugee "camps" (holding facilities for asylum seekers, often in the middle of nowhere), recieve working permits and permission to learn German, and above all, to abolish the Residenzpflicht. 

Residenzpflicht is a long standing policy applying to asylum seekers that limits their freedom of movement while their asylum applications are being processed. They may not leave the administrative zone where they have first registered in Germany without a permit until their asylum status has been sorted out- which in extreme cases can take up to 10 years. Naturally, this policy keeps refugees in a sort of limbo, preventing them from fully integrating into society, traveling to visit relatives, studying at university, or finding work. This nasty law also means the state controls whether you can attend meetings or protests- limiting freedom of speech and the right to assemble.

With the recent refugee march from Wurzburg to Berlin, the refugees and their allies practiced non-violent resistence to these and similar policies, and sought to make the invisible visible.

Did it work? Der Tagespiegel reports today that the Berlin Senator for Integration Dilek Kolat and Refugee Commissioner Maria Böhmer visited the strikers and had a 4 hour discussion with them about their demands. Although the resulting quotes are basically platitudes, the politicians expressed their support of the protest and stated that they supported the desires of the protestors to learn German and start working. Böhmer apparently questioned whether the Residenzpflicht is still "up-to-date," and hinted that they would write a letter discouraging the arrest of the protestors for violating their residence restrictions by travelling to Berlin.

We'll have to keep an eye on the situation to see whether any changes are made to refugee housing, work permits, or the draconian Residenzpflicht. In the meantime, I think the protestors can cautiously celebrate a success.

Read More:
Refugees End Their Hungerstrike (Der Tagespiegel, in German)
Refugee Tent Action (The website of the Hunger Strikers)
AsylstrikeBerlin (Website with information about the refugee march and protest)
Karawane (Organization for the Rights of Refugees and Migrants)
Pro-Asyl (NGO supporting Refugees in Germany)

And finally, here's a clip from an awesome recent documentary by Denise Garcia Bergt about Germany's refugees and migrants, called "Residenzpflict."

Trailer Residenzpflicht from denisebergt on Vimeo.

Images from Berlin's Refugee March

 This weekend in Berlin was the culmination of a long-organized Refugee Protest March, wherein Asylum Seekers protested against deportation and especially the conditions of "Residenzpflicht"- the policy preventing asylum seekers in Germany from travel or work. Here are some images from the March, which I attended.

"Right to Stay for All"- Youth Without Borders

"No Deportation for Refugees! Same Rights for All"

"Stop Deportation- Shut down Refugee Camps"

Even the police came by to show their support :)

New Israeli Regulation Bars Some Non-Citizens from Filing Lawsuits

Child of a migrant worker in Israel, photo via Global Post

 The Jerusalem Post reported Tuesday that the Israeli Justice Minister has signed a new regulation requiring an Israeli ID or a foreign passport number to anyone wishing to file a lawsuit. If true, this law would seem to flagrantly violate many international human rights norms by preventing stateless persons, refugees and asylum seekers from having their day in Court.

Just to refresh your memory, the 1954 Statelessness Convention, to which Israel is a signatory, touches on the topic at article 16. 

Article 16: 1. A stateless person shall have free access to the Courts of Law on the territory
of all Contracting States.
2. A stateless person shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi.

The Universal Declaration of Human Rights also discusses access to Courts in several articles (see, e.g. Art.6-10), and the sentiment of right to legal personhood is echoed continuously throughout the human rights cannon. In other words, Israel could not possibly have failed to notice that a law like this would raise eyebrows, to say the least.

When pressed, the government has responded that,

"amendments were purely technical in nature, and ensured that litigants in possession of an Israeli ID number or foreign passport specified those details on court documents so that court registrars could be certain that they were dealing with the correct individuals.

“The regulation does not alter therefore the current legal situation regarding the basic right to access the courts,” wrote Dr. Peretz Segal, head of the Justice Ministry’s Legal Counsel department. (JPost)

Hmm. So either we have a regulation that would prohibit Palestinians, who de facto do no often possess a government-issued passport, along with a host of other non-citizens, from accessing basic Court procedures, OR we have a meaningless administrative hurdle that does not change the law. If so, why pass it in the first place?

After a few days of back and forth with the government (while Israel steadily garnered increasing attention from the media for this rule, see here, here and here) the Justice Ministry has agreed to review the rule, but is sticking to the story that this does not change anything, really.

Au contraire, says the Association for Civil Rights in Israel, among others.

Attorney Oded Feller of the Association for Civil Rights in Israel warned Neeman the regulations will immediately deprive Palestinian residents of the territories, migrant workers and stateless individuals who have no passports the right to file claims in Israeli courts. ..."Technical matters become fundamental when they specify explicitly who will not be able to file claims in court."

Hopefully the negative attention this rule has attracted in advance of its debut in September will force the Israeli government to reconsider whether this is a step they really want to take. If not, I predict we will see continuing major action on the subject in the Fall. 

Go Guor! Stateless Marathoner to Compete in Olympics

The Olympics is typically a time when even the most timid of citizens become flag-wavers for their country, counting the medals their home country racks up and paying close attention when their country faces off against historical or modern rivals. But one Olympian is drawing media attention not because of his nationality but because of a lack thereof- stateless marathoner Guor Marial.

Marial was born in South Sudan, where he was one of countless children kidnapped and forced into labor during the Sudanese Civil War. As a refugee in Egypt, and later the United States, he left behind many deceased family members and has not seen his parents in 20 years (the complete story can be found here). Marial wouldn't be the first refugee of the Sudan conflict to compete in the Olympics. However, unlike Lopez Lemong, a Sudanese refugee who was a flag-bearer in the Beijing Olympics, Marial does not possess US Citizenship, and will be competing under the Olympic Flag. Despite being offered to compete for Sudan, Marial declined, “It’s not right for me to do that.  It’s not right for me to represent the country I refuged from.”

Media reports have been presenting the case as an uplifting, if bewildering, human interest story. Time noted that if he wins, Marial will stand on the podium while the Olympic hymn (rather than a national anthem) is played. Die Welt ran their article on him with the headline "No Flag and No Hymn." These Olympic trappings are so common that their lack is as headline-making as the shocking story that put him in this situation.

Other articles refer to him simply as a refugee, portraying him as an unoffficial Sudanese representative despite his strong declarations to the contrary.

With an estimated 12 million stateless and 43 million refugees worldwide, belonging to either group is not so remarkable in and of itself. More remarkable to me is the ability of the Olympics, a bastion of nationalism, to allow for some ambiguity in their ceremonial trappings in a way that represents the true nature of a world that is composed of citizens, stateless people, and everything in between. Its obvious that rather than being a disadvantage, being stateless will only cause Mr. Marial to receive even more support when he competes on August 12th.

Non-Citizen News Round-Up

Refugee Camp in Boynuyogan, Turkey in June (via MSNBC) 

Italy: The European Court of Human Rights issues a major smackdown to Italy this week, ruling in Hirsi Jamaa and Others v. Italy that the policy of intercepting migrant boats at sea and returning them (most often to Libya) breached their various obligations of non-refoulement. (Not exactly tough to see why.) This case is HUGE because its one of the rare instances the Court has ruled on the prohibition against mass-expulsion, as well as adding to already strong migrants and refugee rights jurisprudence at the court. Check it out!

Case of Hirsi Jamaa and Others v. Italy (ECtHR) 
Yet Another Mala Figura: Italy Breached Non-Refoulement Obligations (EJIL Blog)

USA: In news welcomed by LGBQT Refugee advocates, the Obama administration has published clarified rules for courts and asylum officers on adjudicating asylum claims based on membership in one of these persecuted social group. I will probably do a full post on this later but for now there is every reason to be pleased at this news, particularly since the glance I've taken shows the gov moving away from the "married/pregnant/ straight-looking people can't be persecuted as gay" techniques that characterized past cases in the US.
Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex Refugee and Asylum Claims (USCIS) (pdf)
LBQT Asylum in US Made a Little Easier (Care 2)


Turkey: Of course, more than any other story this week, focus should be on the Syrians streaming into Turkey fleeing increasing violence. There are now reports that landmines have been laid across escape routes to prevent would-be refugees from escaping. Meanwhile, in response to the emergency UNHCR has appointed a special coordinator for the region's refugees and internally displaced.
On the Turkish Border, a Stream of Fleeing Syrians (Reuters)
Syria: Army Planting Banned Landmines (Human Rights Watch)
UNHCR appioints regional refugee coordinator for Syrian Refugees (UNHCR)

Non-Citizen News Roundup

U.S. Atty Fein at a press conference announcing the indictment, via AP

US: Federal charges have been brought against members of the police force in East Haven, Connecticut for charges ranging from excessive force and false arrest to conspiracy. The basis for the charges is years of harassment and violence against the immigrant community.

"They stopped and detained people, particularly immigrants, without reason, federal prosecutors said, sometimes slapping, hitting or kicking them when they were handcuffed, and once smashing a man’s head into a wall. They followed and arrested residents, including a local priest, who tried to document their behavior."

So despicable, but sadly common in other small towns in America, where picking on immigrants is a pastime as well as a source of income. (As many immigrants, lacking bank account, carry large sums of cash on their person.) Let's hope this action by the Justice Dept. sends a message to police officers like those in East Haven that their racial profiling and bullying will no longer be tolerated. 
NY Times: Police Gang Tyrannized Latinos, Indictment Says
CT.com: Feds Indict 4 East Haven cops in racial profiling abuse case, more may be on the way

Kuwait: 61 of the bidoon/ stateless protestors (that we discussed last week) are being imprisoned for an additional 3 weeks pending further investigations into the protests. The charges include assaulting police and instigating an illegal gathering, although the news out of Kuwait suggests if anyone turned the protests violent, it was police.
AFP: Kuwait detains Stateless Protestors for 3 Weeks

Australia: More than 50 persons in Australian detention are recognized as refugees but unable to leave due to having failed security tests. The security tests have expanded their definitions of threats in the last years, and having being classified as a threat most countries are unwilling to receive the individuals (understandably.) The refugees are not informed why they failed, nor are they accepted by their home country, leaving them in legal limbo without much hope of a resolution. As the Australian human rights violations stack up, you really have to wonder what their government is thinking.
ABC Sydney: Darwin refugees in limbo after failing ASIO tests

On Topic around the Web

Everybody learns in different ways (or at least that's how my Algebra teacher used to console me). So while some people seeking to understand non-citizen issues may be best served by a dry and factual NGO report, others may get the picture better from an evening news piece, a politician's rant, or a short story. Here are a few interesting pieces on non-citizens that may be worth a read or a look to round out your knowledge. 

McSweeney's has a fantastic series of articles by an anonymous "Bible-college educated evangelical" Christian who decided to try out her missionary skills on a group of Somalian refugees in Portland. The resulting tales are funny and often heartbreaking, drawing a comparison between people trying to adjust to a entirely new way of life, and those among us who feel like outsiders wherever they are.
Assimilate or Go Home: Dispatches from the Stateless Wanderers by DLM

Aleksander Hemon, author of several books about the immigrant experience including the bitter and beautiful novel "The Lazarus Project," has a piece out in Guernica Magazine this month about ethnic education in Bosnia and Herzegovina. This look at how the "ridiculous and demeaning" peace-process has played out in the classroom offers a cutting intro into a complex and fascinating subject.
National Subjects by Aleksander Hemon

Surprising Europe, a series from Al Jazeera, has some great pieces covering the experience of African Migrants in Europe. The episode below is especially salient, about undocumented migrants in Berlin and Amsterdam trying to live inside the paper maze.
Running out of Luck- Surprising Europe

And last but not least, below is a video by the Serbian NGO Praxis (whom I work with) regarding the situation of the legally invisible in Serbia.

Day 2 of the Conference Brings Major Results

Guterres to countries: "Nice work, y'all!"

Its still too soon to judge, but it would appear that the UNHCR conference in Geneva this week was a huge success in garnering increased protection of stateless persons and refugees. Its pretty shocking, actually, how many states were willing to pledge to change their citizenship laws, accede to the Statelessness or Refugee Conventions, or to make asylum procedures or court proceedings more fair. I'm guessing UNHCR staff are asking themselves right now, "Why didn't we do this years ago?"

Let's take a look at some of the big announcements coming out yesterday:

•  The following nations will accede to BOTH statelessness conventions (1954 and 1961) : the Gambia, Haiti, Moldova, Sierra Leone, South Africa, South Sudan, Tanzania, Ukraine, and Yemen. Remember, 1961 confers citizenship on children born stateless in the signatory nation, so this is truly very significant.
•  Serbia joined the 1961 Convention (HUGE) as did Zimbabwe, Columbia, Paraguay, Mozambique, Burundi, Guinea, and Belgium.
• Liberia and Senegal both pledged to amend their laws to allow citizenship to pass through the mother, as well as the father. (A huge strike against statelessness and legal invisibility in those nations.)
• The US made a whole range of pledges, totaling 28, including providing refugee minors with cultural education, working to eliminate the 1-year filing deadline on asylum applications, promote pro-bono legal assistance for undocumented migrant youth, and provide additional services to LBQT asylum seekers and survivors of gender-based violence.
• Australia, Brazil, and 6 other countries pledged to improve methods of identifying stateless population. (Wow, way to go all out there, Australia. Would have liked to see some pledges on the asylum-seeker debacle, but maybe next time)

All in all, over 60 countries made pledges, and as High Commish Guterres noted, the conference marked a "quantum leap" on the issue of statelessness. Despite the very hard work being done on the issue all over the world by smaller agencies and non-profits, today's results are of the sort that can only be accomplished with massive coordination and international pressure. A conference like this shows us that its not time to give up on international cooperation just yet.

Congratulations, UNHCR! The future is looking a lot brighter for stateless persons and refugees.

Landmark Stateless Conference in Geneva this Week

As mentioned a few weeks ago, the UNHCR is holding its major conference on forced displacement and statelessness this week in Geneva. Today is the second day of the conference, and of course we are all eagerly waiting to hear what is in store (and especially whether any states will be making announcements pertaining to Treaty signatures). However, a lot has already happened, so here is a quick recap for those of us not lucky enough to be in Geneva.

•  High Commish Antonio Guterres opened the event with a speech emphasizing re-commitment, especially in the face of increased fear and intolerance. "Populist politicians and irresponsible elements of the media exploit feelings of fear and insecurity to scapegoat foreigners, to try to force the adoption of restrictive policies, and to actively spread racist and xenophobic sentiments," he said, in a comment that was a little more political than one is used to hearing from UNHCR. He emphasized the principles of collective security and non-refoulement that underlie the refugee regime, and announced a new effort by the organization to concentrate more heavily on gender and sex-based violence.
• A theme of the conference was "pledges for refugees:" States were encouraged to make commitments to strengthen existing laws or create new ones designed to identity and protect stateless persons and refugees. Most of the attendees apparently pledged to help in one way or another. (See some on twitter, #pledges4refugees")
• Sarnata Reynolds was live-tweeting the events yesterday and her tweets are definitely worth a perusal. Among the revelations: Georgia is about to pass the 1951 Statelessness Convention (YES!), Korea will adopt legislation promoting rights of asylum-seekers, Papa New Guinea will lift reservations on conventions (among other things), and Krygistan will promote child registration to reduce statelessness. If even some of the pledges are kept, the conference will have been a huge success!
• Serbia mysteriously alluded to new changes to the citizenship laws that would "enable all persons in Serbia’s territory to acquire citizenship". I'm working on this issue right now, so I am very curious to what they are referring... Remarks available here.
• U.S. Secretary of State Hillary Clinton gave a speech focusing on gender and statelessness, highlighting the link between discriminatory citizenship laws and children born stateless. "Because of these discriminatory laws, women often can’t register their marriages, the births of their children, or deaths in their families. So these laws perpetuate generations of stateless people, who are often unable to work legally or travel freely..."  She then went on to pledge the US's support in encouraging universal birth registration. Oh man, if loving Hillary Clinton is wrong, I don't want to be right. (Full text of speech available here.)

The conference continues today! You can follow it live via satelite here at the UNHCR's livestream.

Non-Citizen News Roundup

Map showing border enclaves, via The Economist

 India/ Bangladesh: People living on the border region's "enclaves" have been stateless and living in destitute poverty for nearly 60 years, but have seen their living conditions deteriorate even further as river waters rise and engulf their villages. Now, villagers from both sides are protesting to ask the government to implement a border enclaves exchange that will swap territories and make it possible for people to gain citizenship and access to basic public services.
People Stateless at India-Bangladesh border (with video) (via IBN)
Border Agreements- The End of the Enclaves  (via The Economist)

 Australia: Everyone is still miffed about the abandoned Malaysian Refugee Swap solution. The public is angry about the alleged $4.6 million in preaparatory costs for the plan. Tbe Prime Minister isn't thrilled about leaks about the plan from the cabinet making its way to the media. And would-be refugees are probably pissed that the shelving of the deal also means an additional 1000 yearly spots for refugees in Australia are off the table. In sum, what a disaster.
 Government defends cost of Malaysia Solution (via ABC Sydney)
 PM Guillard warns against cabinet leaks (via Sydney Morning Herald)

California: Governor Jerry Brown signs in a new package of laws aimed at helping undocumented migrants. Most importantly, he signed a state-version of the DREAM Act that makes it possible for undocumented students to apply for student aid. As the NY Times puts it,  "With these new laws, California is telling immigrants not to stay hidden but to get educated and keep working hard." What a contrast to the message being sent in Alabama.
Brown Signs California Dream Act (via LA Times)
A Sensible Path in California (via NY Times)

Non-Citizen News Round Up

Photo by Sandy Huffaker for the NY Times

US: Programs aimed at helping settled refugees to start their own farms are gaining traction across the country, as well as making farmer's market offerings more diverse.
When the Uprooted Put Down Roots (via the NY Times)

Australia: UNHCR endorses the controversial Malaysian refugee swap deal? According to this article, the High Commissioner feels refugees are better off in Malaysia, where at least they can work.
Australia's Malaysia Refugee Swap Deal Gets Support from UNHCR (via All Headlines News)

Cuba: Numbers of emigrants going up, likely due to stalling economy
Number of Cuban Migrants Has Surged in 2011 (via Miami Herald)

Mozambique: UNHCR will follow up last years program of mapping and documenting statelessness with a program this year to register Mozambique-born stateless persons. An estimated 2 million people are at risk.
UNHCR to Support Registration of Stateless People (via All Africa Global Media)

Norway: As "paperless" youth gain increased intention in Norway, some are calling for the revival of the Nansen Passport.
Effort Grows to Revive Nansen Passport (via Norway International Network)

LGBTQ Asylum II:Case Law- USA

The last post discussed the 1951 Convention and its "membership in a particular social group" clause, concluding that this is most likely the best fit for LGBQT asylum claims, and was perhaps even contemplated as such by Convention drafters. In this installment, we'll review some important case law where states used the clause to grant protection to applicants.

USA: Matter of Acosta (1985)

In Acosta, a 36 year old Salvadorian man requested leave to remain in the USA during a deportation hearing, applying for asylum. The Judge denied in the first instance, stating that he had failed to meet the burden of proof for his claim, and he appealed to the BIA (Board of Immigration Appeals.) His argument rested on the fact that he was a member of a group of Taxi drivers that was being harassed by anti-government guerillas, whom eventually directly threatened his life. The Court had to address: does this count as a "social group"?

The BIA held that members of particular social group usually share a “common, immutable characteristic” or sometimes a “shared past experience.” More to the point, the Court held that the common characteristic “must be one that the members of the groups either cannot change or should not be required to change because it is fundamental to their individual identities or consciences.” (emphasis mine)

Although not meant to address LGBQT concerns, this definition (the "immutable" principle) is useful because it accommodates much of the debate surrounding sexual orientation. Although it is increasingly believed that sexual orientation is an innate characteristic that cannot be altered by, for example, religious conversion or therapy, it is all the same problematic to sweep out individuals who may feel that their sexual behavior is a choice, but one that is an essential part of their identity. This definition helpfully leaves the debate out of the question by including characteristics that, regardless of their immutability, should not be forcibly eradicated.

Unfortunately, it also leaves the door open for Judges to opine that sexuality is something that both can and should be changed by the applicant. And in the US, this opinion is unfortunately not so uncommon.

Not Gay Enough for the USA

Another big problem with the US asylum scheme for LGBQR applicants is covered in Deborah Morgan’s article "Not Gay Enough for the Government: Racial and Sexual Stereotypes in Sexual Orientation Asylum Cases" (2006) . Morgan focuses on a United States asylum case that pointed out some of the flaws of the immigration system when dealing with an applicant that did not fit into preconceived sexual orientation notions.

 In the Mohammed case, the asylum seeker was a gay Iranian man seeking asylum in the United States after many years of sexual abuse, discovery by the Iranian government (who sometimes punishes homosexuality with death) and further abuse and disownment by his family.  He filed an asylum claim in the United States, and went through the standard interviews and procedures that accompany the asylum process there. However, “Mohammed” had a problem: he did not have sufficient evidence of his sexual orientation. He did not appear “feminine, ” was not openly “out” in the United States where he lived with his Iranian-American partner, and did not have evidence of any of his participation in activities that would have confirmed his identity, such as “participation in gay pride parades.”  (Yes, seriously.) The immigration judge concluded that, “Mohammed was able to hide his sexual orientation well enough to pass as a heterosexual, therefore upon returning to the Iran he could do the same and not have any further problems.”  Unfortunately, this case is just one of many where asylum was denied because of person’s perceived ability to pass or non-demonstration of gay stereotypes.

Not only is this standard absurdly unfair, it also goes far beyond what is required by the 1951 Convention. The Convention requires a nexus between an individual’s membership in a particular social group and his reasonable fear of persecution. Why should it be necessary, then, to match the certain characteristics that this social group might have in the receiving country? An analogous situation would be the Court requiring a person fleeing persecution based on their religious identity to demonstrate that they live out their religion in the receiving country in the same way as other members of that religion do in that country. This additional hardship is likely to cause problems for people coming from non-Western countries, where the LGBT lifestyle is lived very differently.

In sum, the US has some excellent and broadly useful case law on social group membership that can be very beneficial for LGBQT asylum claimants. On the other hand, the perceptions and stereotypes of individual Judges reflect the same ones of the rest of the society, and can unfortunately present a significant obstacle for individuals from non-Western countries.

---

For more on Acosta, see: Susan B. Goldberg. Give Me Liberty or Give Me Death: Political Asylum and the Global Persecution of Lesbians and Gay Men. 26 Cornell Int’L L. J. 605, 613-615. (1993).

For more on LGBQT Asylum claims in the USA, see: The Difficulties of US Asylum Claims based on Sexual Orientation, Swetha Sridharan, via MPI.

Does the Refugee Convention Provide rights for non-Refugees?

The most elementary right owed to refugees is that they not be returned, or “re-fouled” to their home state where they are endangered. The classic expression of the principle is found in the 1951 Convention: “No contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontier of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a certain social group or political opinion.”[1] The principle of non-refoulement is becoming, if it is not already, considered a “peremptory norm” of international law that binds all states. [2]     

In earlier treaties and in the original drafts of the 1951 Convention, the duty of non-refoulement applied only to individuals lawfully present in the state, “refugees who have been authorized to reside in [state party] regularly.”[3] But a shift occurred during the drafting, probably related to the fact that so many refugees were already present in the member states, that a restriction requiring legal entry would have the effect of delegitimizing the majority of valid refugees already present. It seems that parties had already acknowledged this fact, since the discussion of clandestine entry in the travaux is limited to stating that that it is acceptable.[4] Simply put, under the under the principle of non-refoulement any removal at all that puts the refugee in danger is prohibited, whether classified as deportation, forced repatriation, or any other name.[5] This applies to individuals regardless of whether they have been recognized as refugees by the state apparatus.[6] In other words, the principle of non-refoulement attaches at the same moment that you become a refugee under the 1951 Convention, and neither the status determination nor the attaching obligation is dependant on state classifications. This fact is important for undocumented migrants for two reasons

First, it legitimizes illegal entry in certain cases. As a matter of fact, the duty of non-refoulement only applies to individuals already present in the receiving state. As Hathaway explains, “if the duty of non-refoulement under Art. 33 of the Refugee Convention can be claimed only by persons who are, in fact, refugees, then it is not a right that inheres in persons who have yet to leave their country… because Art. 1 of the Convention defines a refugee as a person who resides‘outside the country of his nationality.’”[7] Opening the door to illegal entry is an important feature in and of itself, as it demonstrates that there are occasions in international law when the territorial jurisdiction of a state cedes precedence to the needs to an individual.
 
The second importance of non-refoulement as it relates to clandestine entry is that it creates a presumption that individuals entering a country illegally could potentially have a claim to asylum. This presumption in turn creates a need for a minimum standard of administrative procedures prior to expulsion that could be beneficiary for a person regardless of his or her status.

Status Determinations
If an individual meets the definition of refugee under the 1951 Convention then he or she is a refugee, regardless of whether or not his or her host government or any other body finds otherwise. The 1967 Protocol does not list formal status recognition as a requirement[8] and the Handbook on Procedures and Criteria for Determining Refugee Status (“the Handbook”) explicitly states that a person becomes a refugee at the instant he or she fulfills the criteria. “Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.”[9] This being the case, states may not expel individuals without some basic form of procedural due process to determine the validity of their asylum claim, lest they violate the principle of non-refoulement.

UNHCR recognizes that a variety of procedural systems could adequately determine refugee status, and therefore does not suggest one method for doing so, but does lay out a set ofrecommendations for minimum standards when dealing with refugee status determinations that would comply with the Convention.[10] At the least, individuals should have an opportunity to speak to an official familiar with the State’s international obligations, have access to an interpreter, and the ability to remain in the country pending adjudication of his application, as well as the opportunity to appeal at a higher court.[11]

While it would seem that a majority of 1951 convention states do comply with UNHCR’s recommendation in some form, the effect of these basic due process provisions is beneficial to undocumented migrants regardless of whether or not they are enacted. First, they provide an opportunity to engage with the receiving state’s legal system that may lead to residence status, even in the absence of a refugee determination under the 1951 Convention. Second, in States that do not comply, the lack of these standards is a foothold for NGO’s and human rights treaties to attack the treatment of migrants in general.

*Excerpted from a previous memo on the subject of non-refoulement and rights for undocumented peoples.

________________________________

[1] 1951 Convention at art. 33
[2] Daniel Bethlehem and Sir Elihu Lauterpacht "The Scope and Content of the Principle of non-refoulement: Opinion", in Refugee Protection in International Law 107 (Erika Feller, Volker Turk, Frances Nicholson eds., 2001)
[3] Convention Relating to the Status of Refugees, 159 LNTS 3663, Oct. 28, 1933 at Art. 3.
[4] Collected Travaux at A/CONF.2/SR. 5, 16 
[5] Bethlehem and Lauterpacht supra note 126 at 112.
[6] Id at 116
[7] James C. Hathaway. The Rights of Refugees under International Law. 307 (2005)
[8] 1967 Protocol
[9] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees ¶ 28, UN Doc.  HCR/IP/4/ENG/REV.1.
[10] Id at 191
[11] Id at 192 (i)-(vii)

LGBQT Asylum Part 1- a good fit under "particular social group?"

As states like Uganda pass restrictive measures against gays and lesbians, and countries all over the world continue to harass people that dare to be openly transgendered or gay, it is worth asking whether the 1951 Refugee Convention accommodates LGBQT asylum claims. My opinion? It should, easily, but the practices of receiving states vary, and often reflect their ambivalence with their own LGBQT populations.

"Particular Social Group"

The most vague group protected under 1951 Convention’s refugee definition is “member of a particular social group.” In recent years it has been invoked as a basis of asylum by a range of people both successfully and unsuccessfully, including but not limited to, victims of Female Genital Mutilation (See: Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005)), ex-gang members (see: INS v. Elias-Zacarias, 502 U.S. 478 (1992)), the disabled , and a range of LGBT individuals. But what exactly does this phrase mean?

The Refugee Convention Handbook states, “a ‘particular social group’ normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality (77)." As this definition indicates, the “social group” category is rather broad. The travaux preparatoires is scarcely more helpful. “In the first place, experience had shown that certain refugees had been persecuted because they belonged to particular social groups.  The draft Convention made no provision for such cases, and one designed to cover them should accordingly be included (14)” With so little elaboration, it is difficult to determine what exactly was contemplated at the time of the group’s inclusion within the 1951 Convention.

However, it's at least possible, if not probable, that persecution for reason of sexual orientation could have been in the mind of the authors of the convention. The other categories tend to roughly correspond to the groups of people that were persecuted under German and Italian fascism, and which had caused large numbers of refugees during the post-World War II period. It could scarcely have escaped the attention of the drafters that alongside Jews, Gypsies, Anarchists and anti-fascist Resistance members, gays and lesbians were also targeted heavily by the Nazis.

Additionally, UNHCR has clarified its position on several occasions, most notably in a 2004 Advisory Opinion to the Tokyo Bar Association. In the Opinion, UNHCR explains that sexual orientation can be a cognizable “social group” under the 1951 Convention. “…In UNHCR’s view, homosexuals can be within the ambit of a social group category, either as a group sharing a common characteristic or because they are perceived as a cognizable group in the society (8)". In addition, the Opinion notes that while not all LGBT individuals are automatically entitled to refugee protection, that persecution can be proved in a variety of ways, including by reference to laws criminalizing homosexuality(4).  

So, it would seem that "membership in a particular social group" is in fact a good fit for many LBQT asylum claims. Stay tuned for part two, when I'll review some relevant case law on the subject.

---