Asylum and
Migration - The nexus
(Paper presented by Gerry Van Kessel,
Coordinator, Intergovernmental Consultations on Asylum, Refugee and Migration
Policies for Europe, North America and Australia, Geneva to the Sixth
International Metropolis Conference in Rotterdam, 27 November 2001)
Much is heard these days, from all sides,
of the shortcomings of the Geneva Convention.
In discussing the challenges from the perspective of a policy maker, one
must begin not with the problems facing the Convention but rather with praise
for its successes. The millions and
millions of refugees - the UNHCR estimates the number as 50 million - who since
the end of the Second World War have received protection and built new
productive lives are a tribute to the Convention and to its signatory
States. The Geneva Convention is a
reflection of the public value that countries place on refugee protection not
as a matter of choice but as a legal obligation. In raising the challenges facing refugee protection, therefore,
what is at question is not the principle of refugee protection as defined by
the Convention but rather balanced and effective responses to the challenges
that asylum systems face and have been facing for two decades. Correct responses will ensure better refugee
protection.
The 1951 Geneva Convention relating to the
Status of Refugees and the 1967 Protocol defines who is a refugee, who is not
deserving of refugee protection (a provision receiving greater attention since
September 11) and the rights of refugees in such areas as employment, travel
documents, mobility and social security.
The procedures for determining refugee protection are not defined in the
Convention but are left to signatory States to establish and implement. By signing the Convention the State assumes
the legal obligation of not "refouling" those it finds to be refugees and gives
up its sovereign right to determine who shall be allowed to remain within its
borders.
It is important to note that blaming the
Convention for slow procedures and excessive levels of appeal is
incorrect. That is a State
responsibility. The State puts in place
laws and processes that reflect its own traditions and constitutional arrangements. The courts have been key to defining what
these procedures and interpretations should be. The result of these State arrangements is a process that is
considered, fair but often slow.
The basic challenge facing the Convention
in western States is the volume of asylum seekers, less because most of the
asylum seekers are refugees but more because they are not. It is well known that the population of the
world is growing rapidly, principally in the developing world, and that the
economic and social opportunities for them in their own countries cannot keep
pace. The International Organisation
for Migration (IOM) reports that in 1965 there were 65 million persons outside
their country for at least a year. By
2000 this had grown to 150 million.
About 10 per cent are refugees.
Most remain in the region of origin but with the revolution in
communications and transportation increasing numbers know there is a better
life for them and their families elsewhere and are able to leave their region
and for the wealthier countries of the North.
In the North, there are too few - about 2.5 to 3 million - places for
them as legal immigrants. (The numbers
strongly indicate that even a very large increase in legal migration would be
insufficient to absorb the demand).
This leaves the remainder with difficult choices. Most opt for becoming illegal migrants and
entering the underground labour market.
Others make asylum claims.
Since 1990 there have been about 5.5
million asylum claims made in Europe, North America and Australia. About 1 million were successful, about the
same number received the right to remain on other protection and on
humanitarian grounds and the rest were refused. This phenomenon of persons applying for refugee protection for
other than protection needs is what is called
"mixed flows" and is now the subject of a major international debate in
the context of the Global Consultations that the United Nations High
Commissioner for Refugees (UNHCR) on the fiftieth anniversary of the
Convention. The reason that people not
needing protection apply for asylum is obvious. They want a better life for themselves and their children and
believe that their chances of realising that goal are greater if they apply for
asylum. The next question is why
applying for asylum enhances that prospect.
The issue of non-refoulement, that is, of
not sending someone back to his country where he or she would face persecution
is of the highest importance. It
requires high procedural standards and safeguards, ones that are of obvious
interest to courts and which courts have helped define. Time is needed to make, hear and decide the
claim. The intricacies of the law and
the issues usually require lawyers. The
lack of knowledge of the asylum seeker of the language means interpreters. The importance of the issue means that
appeals are essential to ensuring correct decisions. These factors make it clear that the result is a slow
process. For those needing protection
this means a prolonged period of uncertainty before they can proceed to rebuild
their lives. For those not needing
protection a slow process is what they want.
They know the outcome of their claim and appeals will be negative. For them the issue is remaining as long as
they can, to work legally if that is allowed and illegally if not and to build
a case to be allowed to remain on humanitarian grounds.
The facts in asylum cases can be hard to
verify creating problems for legitimate asylum seekers and for decision
makers. The alleged events happened far
way, may seem implausible and yet be true.
This becomes an opportunity for those asylum seekers applying for
reasons other than protection. Often
assisted by smugglers, consultants and lawyers they manufacture facts that
appear plausible but cannot be verified. Many asylum seekers destroy their travel
and other identity documents not because that is what they have to do to get
into a country of asylum (it occurs after boarding the aircraft to the final
destination) but because the lack of identity makes the job of the decision
maker more difficult. For decision
makers the challenge is to distinguish asylum claims that have merit from those
that do not despite the similarity of the alleged facts. As well, they need to avoid becoming
disenchanted with all asylum seekers because of the lengths those not needing
protection will go.
The importance of prompt processing is
obvious but making asylum processes function efficiently and effectively is a
major management and administrative undertaking. There is a close three-way relationship between procedures, staff
(decision makers and support staff) and volumes. If there are sufficient well trained staff to apply the
procedures and to handle the volume of asylum seekers and the procedures are
not too complex there is a reasonable chance of an efficient and effective
process. What cannot be managed and
what cannot be predicted is volumes.
These can change very quickly, certainly more quickly than obtaining
increases in staff. The result is
longer processes and longer assured stay in the country.
It is well know that States with large
backlogs of cases ay resort to amnesties because they cannot process all the
claims and, even if they did, they could not remove all the unsuccessful
claimants. The amnesty is accompanied
by an announcement of new legislation, processes and resources that will avoid
new backlogs. Amnesties reward those
who applied for asylum but reasons other than protection. They gain the right to remain and, in many
cases, the right to bring their families to join them.
Another reason for making an asylum claim
is that, even if the claim is unsuccessful and the right to remain legally for
reasons other than protection is not granted, the logical result of a negative
decision - removal from the country and return to their own country - is
unlikely. Few States have a good record
of returning unsuccessful asylum seekers.
Unsuccessful claimants who do not leave voluntarily do not find it
difficult to remain underground. States
do not provide the resources needed to locate and remove them. Even when they are located, it is often
difficult to obtain the travel documents for their return. Certain States are unwilling to take back
their nationals by refusing to issue the necessary travel documents. This is well known to unsuccessful asylum
seekers and the smugglers and others who counsel them. For the public the question is why States
have such extensive and expensive processes if the result - remaining in the
country - is the same whether the applicant is successful or not. He or she gets to stay. For the unsuccessful asylum seeker remaining
as an illegal, while far less attractive than having the legal right of
residence, is better that returning.
These factors together place States in very
difficult positions. They have to find
a way to maintain their international obligation not to refoule and their
sovereign right to manage who enters and remains. Because asylum seekers comprise mixed flows, State responses to
asylum flows include measures such as accelerated procedures and manifestly
unfounded provisions that are aimed at those applying for reasons other than
refugee protection. To restrict the volumes gaining access to their countries
States have introduced to varying degrees controls outside their borders. These include visas, airline control
officers and transportation company penalties.
At the same time States have added resources to all aspects of migration
and asylum management. More resources
for asylum systems are intended to ensure quicker processing and therefore to
reduce the attractions of the asylum processes for those not needing
protection. More resources for
migration control mean fewer migrants are able to enter the country and more
are removed to give effect to negative asylum decisions.
One result of the move to strengthened
entry controls is that illegal entry has become more difficult. The pressure to migrate, however, has not
diminished. Rather than turn to small
time smugglers who are unable to overcome these new controls, migrants and
asylum seekers have turned to organised crime.
Organised crime has the organization, the talent and the reach to
circumvent pre-entry controls such as visas with sophisticated security
features, to evade the heightened vigilance of airlines and to arrange
alternate transportation if that is necessary.
This means, of course, that the cost and the danger to the persons being
smuggled and trafficked have increased.
The problem is that as long as there
remains a reasonable chance of success in remaining in countries of
destination, there will be a market for organized crime to respond to the
demand. There is therefore an
inconsistency between the measures States are using to manage entry and the
reward States provide to those successful in evading these controls. The alternative of no border controls and
large scale illegal migration is not an answer that States have an ability to
manage and their publics have shown a willingness to accept.
For persons needing protection the added
restrictions placed by States on entry may place them in a very difficult
situation even if, as is the case, these restrictions are almost always applied
in other signatory States. States and
the UNHCR have only started to discuss how to ensure protection for persons
affected by migration and border controls.
While some argue that States are obligated to allow the entry and
illegal stay of all persons claiming a need for asylum, the experience of
States is that this would result in the entry of very large numbers of persons,
not just those seeking economic betterment but as well criminals, terrorists
and war criminals. The subject for
debate therefore has to be not whether border control measures should remain
but how to provide protection within the framework of border controls.
There is another result of the current
situation. States are spending very
large amounts of money on asylum. The
cost of these systems and providing for the accommodation and living expenses
of about 500,000 claimants who arrive each year is US$10 billion annually. Most of the costs are for the majority of
claimants not needing protection who exhaust the legal and administrative
avenues to challenge the negative asylum decision. This amount contrasts with the annual budget of the UNHCR. The UNHCR has a budget well below US$1
billion annually to look after the needs of about 22 million refugees and other
persons of concern. States that receive
40,000-50,000 asylum seekers annually spend at least, and probably more than,
the total UNHCR budget. The contrast is
between what is being spent on so many not needing protection and on what is
not being spent on those who are refugees and are in squalid and inhuman
refugee camps.
All of this creates confusion in the minds
of the public about asylum seekers.
Just as States face difficulties distinguishing between those needing
protection and those not needing it, so has the public difficulty making these
distinctions. The result is that public support for asylum systems is often
weak and can turn negative as asylum systems face their periodic crises. This needs to be contrasted with strong
public support for refugees when the issues are clear. Almost always this has involved large scale
refugee situations involving resettlement.
Examples include Hungary, Czechoslovakia, Uganda, Chile, Indochina and
most recently Kosovo. The latter is an
example of strong support for refugees at a time of public doubts about
asylum. The challenge is how to manage
asylum systems in a way that draws out the support of the public for refugees.
This brings us to the point of asking
whether the nexus can be broken. To
suggest that in today's world of enduring migratory pressures there will not be
a time when people do not seek to take personal advantage of systems that will
give them a better life, even if that is not the purpose of the system, is
unrealistic. At the same time there
have to measures that balance refugee protection and migration management.
One of the outcomes of the Global
Consultations of the UNHCR in dealing with mixed flows is the realisation that
whereas there is an international framework for dealing with refugees there is
none for migration. It is increasingly obvious that migratory pressures are
global in nature and cannot be dealt with unilaterally or bilaterally. Even so-called sending countries are finding
that they are also countries of destination and transit. Almost all countries are finding that they
have to respond to migratory movements.
Multilateral arrangements and understandings that incorporate the
concerns of sending, transit and receiving States may be closer than we thought
even a few years ago.
Some call for higher legal migration to
offset the pressure facing asylum systems from economic migrants. This assumes that asylum seekers fit the
labour market needs of receiving
countries, an assumption that appears doubtful. It assumes as well that the increase in legal migration will be
enough to reduce the economic migrants who use asylum systems to make their
migration intentions known.
There is some discussion of regional
processing centers for refugees so that they will not have to resort to
smugglers and traffickers and the dangers of transportation to get
protection. That is worthy of further
examination. It deals with the issue
raised above of
protection within migration control
frameworks. Would it, however, result
in refugees getting protection but economic migrants continuing to risk all to
make claims in States as their way of migrating? If so, the asylum systems will have fewer persons needing asylum
than is now the case with the result that they will be more criticised than
they currently are.
In this debate what is clear is that asylum
seekers, both those needing protection and those who do not, claim asylum to
obtain residency. For refugees the
right to remain is the durable solution to his or her protection needs. For asylum seekers claiming for reasons
other than protection the chances are reasonable that the outcome will still be
residency. If not de jure residency,
then they opt as a last resort for de facto residency. This contrasts with refugees in camps. They have protection but no durable solution
because there is no right of residency.
Is there a way to delink protection and residency? It as an issue of great complexity and of
no easy answer.
More resettlement makes sense. It has public support because it avoids the
confusion inherent in asylum systems.
It deals with people in camps, most of who cannot pay smugglers and traffickers
and in that way find their own durable solution, and for whom the other durable
solutions of repatriation and local integration are not available. For those who have been in refugee camps for
many years it reduces the pressure to resort to smugglers to go to countries
with mature asylum systems and good economic and social prospects. Finally, and it is an observation that needs
examination, it is surprising that there is as much difference as there is
between the top ten source countries
for refugee resettlement and for asylum seekers.
The issues outlined above are of vital
importance. A broad debate is needed if
answers are to be found that deal with the various aspects of this complex
issue starting with the need to protect refugees and to allow States to
exercise sovereignty with respect to those who are not in need of
protection. Public support for refugees
exists but it has to be to be maintained.
