refugee protection in south east asia michael timmins
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Refugee protection in South East AsiaMichael Timmins
Asia:
◦ 3,607,200
o Few Signatories (Philippines, Cambodia)
o Major camp populations
o Large numbers of unregistered refugees
◦No legal status◦Forcible return back to persecution
(refoulement)◦Arbitrary and prolonged detention◦Lack of access to healthcare, education,
and livelihood◦Host country exploitation
◦ Camps
◦ Urban refugees
◦ Mandate of protection
◦ Direct operational assistance
“Yet, the main responsibility for safeguarding the rights of refugees lies with states, not least because of the fundamental responsibility of states to guarantee the human rights of everyone (including non-citizens) subject to their jurisdiction and within their territory.”
Turk, V. & Eyster, E., Strengthening UNHCR’s System of Accountability (2010)
Asylum Claims in 2011:
◦ 876,100
South Africa:◦ 107,000
USA:◦ 76,000
France:◦ 52,100
UNHCR:
◦ 98,800
UNHCR Refugee Status Determination (RSD):
◦ Core protection mechanism
◦ Where states are unable or unwilling to conduct RSD
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To make the right decision under the Convention.
Objectively, on the facts found, is there a well-founded fear of being persecuted for a Convention reason?
Easy.
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Credibility assessment
Country of origin information
Legal assessment
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Legal assessment:
◦ Treaty interpretation: Vienna Convention on the Law of Treaties
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“[A decision-maker] must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty.”
R. v. SSHD, ex parte Adan and Aitseguer [2001] 2 WLR 143 (U.K.H.L., Dec. 19, 2000)
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“The effectiveness of mandate RSD as a protection function depends upon the fairness and integrity of UNHCR RSD procedures and the quality of UNHCR RSD decisions.”
Unit 1-1, UNHCR, Procedural Standards for Refugee Status Determination
Under UNHCR's Mandate (2003)
Michael Alexander (1999):
1. Publication of substantive criteria applied by UNHCR
2. Provision of information to asylum seekers
3. Availability and access to independent legal advice and assistance for asylum seekers
4. Allowing advisors or representatives to be present at interviews
5. Access to information on the asylum seeker’s file, and all information used in making a decision
6. Reasons for rejection
7. Right of appeal
8. Requirement of ‘new information’ for appeals
Consistent violations of natural justice
Lack of access to counsel
No accountability mechanism
Delays◦ Minute protection space
Global Administrative Law:
“…the operation of existing or possible principles, procedural rules and reviewing and other mechanisms relating to accountability, participation, and assurance of legality in global governance.”
Kingsbury, B., Krisch, N., & Stewart, R., The Emergence of Global Administrative Law (2005)
◦ Not legally trained
◦ Lack of experience
◦ Lack of sufficient support Credibility decision-making
◦ Compassion fatigue
Revision of the 2003 Procedural Standards:
◦ View applicants as rights holders, not beneficiaries
Bring UNHCR RSD staff into the international judicial conversation
State responsibility
Strategic litigation:◦ CAT◦ ICCPR◦ CRC
Regional Cooperation Framework
Externalising border control
Exporting bad policies
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