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UNHCR'S 1997 URBAN REFUGEE POLICY
Introduction
UNHCR has a clear mandate to protect refugees, including those living in urban areas. In December 1997 UNHCR introduced its Policy on Refugees in Urban Areas (Urban Refugee Policy). The policy is based on a blanket assumption that most refugees should not be moving to or living in urban areas. In many places, UNHCR policy-makers at the field level have embraced this assumption. The Urban Refugee Policy makes two misguided assumptions about urban refugees:
· They are too reliant on UNHCR assistance; and
· Many of them should not be in urban areas, either because they have moved without authorization from a country where they found protection to another country (making them "irregular movers"); or because they have moved without authorization from elsewhere in the country of asylum.
In light of considerable evidence that these assumptions are unfounded, including the evidence contained in this report, Human Rights Watch recommends that the Urban Refugee Policy be substantially revised. Indeed, UNHCR's own Evaluation and Policy Analysis Unit (EPAU) has already come to this same conclusion on several occasions in thorough evaluations of UNHCR's urban refugee program in New Delhi23 and Cairo,24 in an evaluation of the implementation of the Urban Refugee Policy,25 and in a report from a UNHCR/NGO workshop on this same subject.26 Unfortunately, the EPAU's recommendations have not yet been implemented by UNHCR.
The most fundamental problem in the Urban Refugee Policy continues to be its lack of detailed protection recommendations. Instead, the policy focuses almost exclusively on assistance and ignores the very real protection needs of refugees in urban areas. As a result urban refugees, such as those interviewed by Human Rights Watch in Kenya and Uganda, are falling into a protection vacuum.
Earlier Drafts of the Urban Refugee Policy
UNHCR began work on an urban refugee policy following recommendations from its Inspection and Evaluation Service in October 1995. An earlier draft of the policy was completed in March 1997, but this was heavily criticized both internally and externally. The major criticism centered on the unfounded core message-that it was either overtly illegal, or against efficient program management, for refugees to reside in urban centers. UNHCR's policy conclusion was unabashedly to reduce programs for urban refugees and to prevent refugees from locating in urban environments:
This [1997] policy is likely to result in a more restrictive approach to the provision of care and maintenance assistance than hitherto and requires a more active approach to durable solutions, including containment of future irregular movement.27
Critique of UNHCR's Current Urban Refugee Policy
In response to these criticisms, UNHCR re-issued the policy in December 1997. Important improvements were made. For example, the second paragraph of the new Urban Refugee Policy gives renewed emphasis to UNHCR's protection responsibilities towards urban refugees:
UNHCR's obligations in respect of international protection are not affected by either the location of the refugees of the nature of the movement to that location. In a number of countries, asylum seekers arrive directly in urban areas. Whatever the nature of the movement or legal status of a person of concern to UNHCR in an urban area, the overriding priority remains to ensure protection.28
However, this commitment is undermined by UNHCR's statement in the first paragraph that the policy seeks to address "the provision of assistance to...refugees in urban areas, [and] the problems that may be created by unregulated movement to urban areas, whether this movement takes place within the country or from another country where the refugee had found protection."29 Thus, the concept of "irregular movers" to urban areas remains even in the revised policy.
The Urban Refugee Policy begins its discussion of assistance by stating that "there are many examples of problems and long-standing demands on UNHCR resources as a result of assistance programmes in urban areas."30 The policy also focuses on means by which assistance programs can avoid long-term dependence and promote self-reliance, which are both understandable goals for any development initiative.
However, the policy also states "UNHCR may, however, limit the location where UNHCR assistance is provided. Where refugees are assisted in settlements or camps outside urban areas, UNHCR should provide assistance in urban areas to refugees from the same country of origin only with the agreement of the government and if there are compelling reasons31 to do so."32 The underlying message of this statement is that when refugees from the same country of origin are living in camps and in cities, UNHCR should assist them mainly in camps, particularly if the host government prefers them to live there.
Human Rights Watch believes that this policy runs counter to UNHCR's core mandate to provide protection to refugees wherever they are living. Neither the Refugee Convention nor UNHCR's Statute allow for a distinction to be made between the rights of refugees based upon their location in a camp or an urban setting. While many governments, such as Kenya and Uganda, have policies in place to limit the presence of refugees in urban environments, it is too often the case that UNHCR unreservedly accepts these policies, rather than advocating for the rights of refugees wherever they are under human rights and refugee law. UNHCR should be pushing governments like Kenya and Uganda to respect refugees' rights to freedom of movement and to provide protection and assistance to refugees in cities like Nairobi and Kampala.
Moreover, Human Rights Watch has found that refugees in urban areas have chronic assistance needs. Refugees in Nairobi and Kampala suffer from unsafe housing, inadequate food, and lack of access to basic medical care. Far from reducing assistance to urban refugees, as the Urban Refugee Policy advises, UNHCR should be increasing assistance to refugees in urban areas who are desperately in need.
The policy's recommendation that where refugees from the same country of origin are living in camps and in cities, UNHCR should only provide assistance to refugees in urban areas under compelling circumstances and with the express permission of the government is also problematic and contradicts other aspects of the Urban Refugee Policy. For example, the policy asserts that "a refugee in an urban area should have neither more nor less chance of resettlement than he or she would have had in a refugee camp in the same country."33 Yet it was clearly the case in Uganda, for example, that prima facie refugees living in Kampala had less access to UNHCR and to resettlement opportunities.
Finally, in its analysis of planning assistance programs, the Urban Refugee Policy incorrectly assumes that "the majority of refugees in urban areas are generally male."34 UNHCR's EPAU has consistently questioned the accuracy of this statement.35 The assumption that refugee women and children are in the minority in urban areas has led directly to insufficient attention being paid to their particular protection and assistance needs. UNHCR recognizes this when it recommends that "particular attention must... be paid to identifying the[] needs [of women, adolescents, and children]."36
More than one-third of the Urban Refugee Policy is focused on the problem of "irregular movement,"37 which is a term used in the policy to describe the concept of "secondary movement," for reasons not related to protection. The policy begins its discussion with protection concerns - it states that: "a refugee who is compelled to move because of specific protection or security problems in his or her previous country clearly cannot be considered to have found protection there." 38
However, the remainder of the discussion focuses on means by which UNHCR can "discourage" irregular secondary movement. The policy states that while UNHCR's obligation to protect irregular movers is unchanged, the agency "does not have an obligation to provide assistance to refugees after irregular movement on the same basis as it would have had there been no irregular movement."39
There is an assumption in the policy that the majority of urban refugees are irregular movers, but this is not substantiated anywhere in the policy and was not borne out by Human Rights Watch's own investigation into urban refugees in East Africa. Of the 150 refugees interviewed by Human Rights Watch, at most five were irregular movers, or persons who had already accessed protection through UNHCR's offices or obtained refugee status in a previous country of asylum. As already noted, many of these people had serious security reasons for moving from one country to another.
In addition, the overwhelming attention paid in the Urban Refugee Policy to the impropriety of irregular movement fails to recognize the nature of refugee movements in countries like Kenya and Uganda.40 In these two countries and many others, the complexity of protection and assistance problems, the strong desire to reunite with family members, the realities of modes and paths of transport, and the panoply of actors who pose security threats all mean that refugees may have compelling reasons to move from one country to another.
The Urban Refugee Policy states that when determining the status of an individual who has moved from a first country of asylum, UNHCR staff should take into account the "specific protection or security problems" an alleged secondary mover may have faced in her first country of asylum before deciding whether or not to afford refugee protection.
But assessing the nature of the threats a refugee may have faced and the quality of the protection obtained only adds an additional labor-intensive layer to the determination process-one that in a city like Nairobi is already fraught with delays and staffing constraints. Perhaps partly because of these constraints, UNHCR protection officers do not always apply the protection standards articulated in the Urban Refugee Policy to potential "irregular"movers and, instead, summarily order them returned to the first country of asylum. As discussed below, Human Rights Watch documented problematic instances in which the policy against irregular "secondary movements" was applied to individuals both in Kenya and Uganda.
Moreover, the Urban Refugee Policy focuses exclusively on modalities for sending "irregular" movers back to their countries of first asylum,41 while completely ignoring the important question of how to provide adequate protection in the new country of asylum to those urban refugees who have legitimate security rationales for leaving their countries of first asylum.
Finally, the policy states that while UNHCR's protection duties vis-à-vis irregular movers remain the same, assistance may be scaled back. Yet this belies UNHCR's own frequently cited assertion that protection is most effectively provided through assistance.42 In this report, Human Rights Watch has shown how urban refugees are suffering protection problems, such as rape, because of their lack of access to assistance, such as adequate housing.
Urban Refugees: A Policy Blind-Spot
Urban refugees are consistently ignored and policies in place for them sometimes contradict UNHCR's other policies and guidelines on protecting refugees, especially those on refugee women and children. The underlying assumption in many of these policies appears to be that refugees either live in camps, or if they are in an urban environment they are located in the developed world, where a number of governments have put in place sophisticated policies. Where urban refugees in developing countries are considered it is always with the assumption that they are there improperly.
For example, UNHCR's Guidelines on the Protection of Refugee Women make detailed recommendations on planning for the delivery of assistance within and the layout and location of refugee camps. Similar recommendations are not made for assistance programs or housing arrangements for women refugees in urban centers.43 UNHCR's comprehensive discussion of physical and sexual attacks and abuse considers the problem in camps, and then jumps to a discussion of refugee women, presumably in industrialized countries, who are located in detention facilities.44 Physical and sexual abuse of women refugees in urban environments is not considered. The few instances in which urban refugee women are directly addressed falter on the assumption that these women are improperly present in cities. For example, the policy accurately links the problem of prostitution with the illegal status of urban refugee women, without making targeted recommendations to ameliorate that illegal status in domestic law.45
In addition, UNHCR's Guidelines on Prevention and Response to Sexual Violence Against Refugees, acknowledges that refugees may be in camps or urban situations.46 However, when discussing the various kinds of environments in which refugee women are at risk of attack, attacks near or in the "homes" of refugee women are discussed,47 and problems in camps are discussed.48 Nowhere is the obvious point made that refugee women sleeping on the streets due to lack of housing are particularly at risk of sexual violence.
Moreover, UNHCR's Guidelines on the Protection and Care of Refugee Children, fail to make explicit the agency's protection responsibilities for refugee children in urban environments. The agency's Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum are mostly directed at governments in the industrialized world, and they fail to mention UNHCR's responsibilities in its own status determinations, or the particular factors that arise when refugee children are seeking asylum in urban environments in the developing world. For example, the Guidelines fail to recognize that unaccompanied refugee children may not be identified when large numbers of refugees are seeking access to UNHCR's office in urban areas. Neither do the Guidelines recognize that unaccompanied refugee children may be seeking asylum and making decisions on behalf of several other younger siblings who may not be represented at the proceedings.
Finally, UNHCR does not compile comprehensive statistics on urban refugees. In those countries in which field offices do collect statistics on urban refugees, the focus is on those refugees who are registered with UNHCR and/or who are receiving UNHCR assistance.49 Refugees not receiving UNHCR assistance, those who have been unable or unwilling to register, and those who are located in other urban environments within the same country are invisible and almost completely forgotten.
23 See UNHCR, Evaluation of UNHCR's Policy on Refugees in Urban Areas: A Case Study Review of New Delhi, November 2000.
24 See UNHCR, Evaluation of UNHCR's Policy on Refugees in Urban Areas: A Case Study Review of Cairo, June 2001.
25 See UNHCR, Evaluation of the Implementation of UNHCR's Policy on Refugees in Urban Areas, December 2001.
26 See UNHCR, UNHCR Policy on Refugees in Urban Areas, Report of a UNHCR/NGO Workshop, August 2002.
27 See UNHCR, Comprehensive Policy on Urban Refugees, Geneva, March 25, 1997, introductory note, para 4.
28 See UNHCR, Policy on Refugees in Urban Areas, December 12, 1997, para. 2.
29 Ibid. para. 1.
30 Ibid. para. 5.
31 The "compelling reasons" UNHCR lists are: specific protection or security problems faced by an individual or his or her family in the settlement or camp; pre-arranged movement to an urban area for the duration of health care or for reunion with family members legally resident in the urban area; and assistance in achieving a durable solution, where this is possible in the urban area. See UNHCR, Policy on Refugees in Urban Areas, December 12, 1997, para. 4.
32 See UNHCR, Policy on Refugees in Urban Areas, December 12, 1997, para. 3.
33 Ibid., para. 10.
34 Ibid., para. 8.
35 See also UNHCR, Evaluation of the Implementation of UNHCR's Policy on Refugees in Urban Areas, December 2001, para. 12.
36 See UNHCR, Policy on Refugees in Urban Areas, December 12, 1997, para. 8.
37 Eight of the Policy's twenty-one paragraphs discuss this issue.
38 See UNHCR, Policy on Refugees in Urban Areas, December 12, 1997, para. 13.
39 See UNHCR, Policy on Refugees in Urban Areas, December 12, 1997, para. 18 (emphasis added).
40 Such a policy focus on stopping irregular movers in their tracks also avoids ExCom's advice that humane treatment for refugees and asylum seekers should still be ensured "because of the uncertain situation in which they find themselves, [they] feel impelled to move from one country to another in an irregular manner." See "Problem of Refugees and Asylum-Seekers Who Move in an Irregular Manner from a Country in Which They Had Already Found Protection," ExCom Conclusion No. 58, 1989, para. c) iv).
41 See UNHCR, Policy on Refugees in Urban Areas, December 12, 1997, para. 18.
42 See Executive Committee of the High Commissioner's Programme Forty Fifth Session Note on International Protection A/AC.96/830, September 7, 1994, paragraphs 14-18.
43 See UNHCR's Guidelines on the Protection of Refugee Women, July 1991, p. 29-30.
44 Ibid. p. 31.
45 Ibid. p. 40.
46 See UNHCR, Guidelines on Prevention and Response to Sexual Violence Against Refugees, 1995, p. 5.
47 Ibid. p. 5.
48 Ibid. p. 9.
49 See UNHCR, Evaluation of the Implementation of UNHCR's Policy on Refugees in Urban Areas, December 2001, para. 11.
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