High Commissioner's Forum
1 October 2004

NGO STATEMENT ON ADDRESSING IRREGULAR SECONDARY MOVEMENTS OF REFUGEES AND ASYLUM SEEKERS

Introduction

As active members of the Core Group on "Addressing Irregular Secondary Movements of Refugees and Asylum seekers", NGOs wish first to place on record our appreciation at the consultative and transparent manner in which the work of this Core Group has been conducted by the facilitators. We look forward to further and concrete discussions that take the human rights of refugees as a starting point.

At the outset, NGOs wish to recall the fundamental aim of the Convention Plus initiative as set out in the UNHCR document 'Convention Plus at a Glance' (14 May 2004) which is "to improve refugee protection worldwide and to facilitate the resolution of refugee problems through multilateral special agreements." This fundamentally is what the work of this strand is about, and any outcome that does not have as its primary and explicit aim the furtherance of the human rights of refugees and asylum seekers will necessarily be contrary to this aim.

Scope of the discussion
In this context, NGOs wish to draw the attention of the Forum to two issues which in our view do not fit in this strand of Convention Plus , but which have unfortunately come up in the discussion. In the first place, recalling a point that was made in our statement to the last meeting of this Forum, this discussion is not, and should not be, an exercise in migration control, even though the 'migration arena' might form part of the context within which the issue of irregular secondary movement could be viewed. It is also not primarily about the crafting of special agreements that have as their purpose the conclusion of readmission agreements and return arrangements, including the return of 'irregular or undocumented migrants'.

This strand is primarily about securing and enhancing the protection of persons who are and remain in need of international refugee protection, whether they have been formally identified as such or not (asylum seekers), wherever they are and however they choose or are forced to move. In this context, NGOs wish to draw attention to the fact that asylum procedures in many countries are of such a poor standard that a substantial proportion of persons in need of international protection are denied the refugee status to which they are entitled. NGOs have broad-ranging concerns on poor or inadequate asylum determination procedures conducted both by states and by UNHCR, including the denial of the right to legal counsel; limited, unqualified or biased interpretation; and a failure to give reasons, including written reasons, for rejection. And on a related issue, NGOs are concerned that the use of penalties and deterrents to prevent onward movements risks punishing the very persons for whom the Convention Plus initiative is trying to find solutions, namely those refugees living in protracted refugee situations.

NGOs wish to make clear, having said that, that persons not properly the subject of this discussion, such as undocumented migrants, have fundamental human rights which must not be violated in any manner in the course of the operationalization of this strand. Importantly in this context, any returns of persons to their countries of origin must respect fundamental human rights standards, including the principle of non-refoulement.

NGOs urge that Excom Conclusion 58 (XL) should serve as the guiding standard for the discussion on irregular movement, and recall that this Conclusion speaks to the movement of refugees onwards from countries in which they have already found protection. We reiterate that in our view the primary movement of a refugee or asylum seeker continues until such time as the person has found effective protection. It is only after this that one is able to speak of a "secondary movement".

In our view, though, the primary contribution of this strand to enhancing refugee protection will be to address the protection concerns of those persons who have not found effective protection. In other words, to address the onward movement of persons who have not been able to access protection of their fundamental human rights, including their economic, social and cultural rights. This is recognized in part in UNHCR's "Basic Propositions on Irregular Secondary Movements" (25 June 2004).

Gaps in protection
In light of this, NGOs believe that an analysis must be made of the gaps in protection which cause refugees to move onwards in search of effective protection. In other words, why do refugees move onwards? NGOs have conducted some research into this question, which indicates that the motivation behind such onward movements includes the risk of forced return, the lack of a legal status, the risk of arbitrary detention, and the discriminatory denial of basic economic, social and cultural rights such as the right to work.

An analysis of gaps in effective protection is fundamental to the search for rights-respecting solutions, which in itself is a necessary element of the debate. In this context, we would welcome more details of the project being undertaken by the Department of International Protection on strengthening protection capacities.

The debate on effective protection
Identifying the core components of the concept of "effective protection" is equally vital in this discussion. NGOs emphasize that effective protection requires the delivery of legal, physical and social protection, firmly grounded in international human rights standards, and where the dignity of the individual human being is an essential component. It should be linked to the search for and delivery of durable solutions. Protection is not truly effective unless there is a realistic and timely prospect of a durable solution; otherwise it is no more than "warehousing".

If "effective protection" is to be a term of any substantive meaning to the lives of the millions of refugees, IDPs, asylum seekers and returnees, it must enable them to live lives of dignity with full respect for their human rights. In effect, it should be about the quality of protection provided to refugees. It should not be allowed to be "negotiated down" or held hostage to the self-interest of states. In addition, the scope of the concept of "effective protection" must be driven by facts, not assumptions about situations in which it is "expected" that a person could or should have been able to access protection.

In order to guide the on-going debate on what constitutes "effective protection", NGOs support the call of the African Group to UNHCR's Department of International Protection to provide an authoritative, rights-respecting and comprehensive definition of the scope and content of "effective protection".

Burden and responsibility-sharing within a human rights framework
Improving the quality and effectiveness of protection available within countries in the regions close to the source of refugee movements, while important, must not be taken by states in more distant regions as an excuse to relinquish their protection obligations towards asylum seekers and refugees on their territories or under their effective control. In order to ensure that this strand of Convention Plus is credible, both to the refugees themselves as well as to the developing countries that host the vast majority of the world's refugees, it must not be intended to be, or be open to interpretation as, an exercise in "burden-shifting".

In addition, it is useful to question the assumption that refugees are necessarily always better off remaining as close to their country of origin as possible. As has been unhappily demonstrated in the past, situations including where refugees are located in camps physically proximate to their country of origin, or make their way to overcrowded and under-resourced urban centres in neighbouring countries, have actually exacerbated existing tensions or even created new ones resulting in serious deficiencies in the delivery of protection.

NGOs welcome the proposal made at the last meeting of the Core Group, and reiterated this morning by the High Commissioner, to situate the concept of burden and responsibility-sharing within a human rights framework. We believe firmly that any multilateral arrangement to emerge from the discussions within this, and the other, strands, must be firmly and explicitly grounded in international human rights and refugee law, and international humanitarian law as appropriate.

Somali survey
In the context of the survey that is currently being conducted by the Swiss Forum for Migration on the movement of Somali refugees, NGOs urge that sufficient attention is paid in the design and implementation of the survey to issues of gender and age.

In addition, we recommend caution on the use of this particular caseload

1. to draw generic conclusions on the motivation and methods of onward movement; and
2. as the subject of a special agreement in a manner that is premature, given the conditions of insecurity and human rights violations that still continue in Somalia.

NGOs further recommend that the Core Group focus some attention on the situation in relation to the onward or secondary movement of other refugee groups in other regions of the world in order to better inform its discussions.

Thank you