PROTECTION FAILURES IN THE STATUS DETERMINATION PROCESS
Responsibility for Status Determinations
It is the responsibility of the government of Kenya to assess the status of refugees in its territory, but UNHCR recognizes that where governments fail to do so, in some cases it must "directly undertak[e] individual status determination."175 UNHCR recognizes that one of its most "crucial" protection activities is to "ensure that asylum-seekers are given access to status determination procedures." 176
Although UNHCR considers that running status determinations, as it does in Nairobi, is "neither necessary nor in line with the traditional functions of [its] office,"177 where it is responsible for status determinations, UNHCR must set an example by adhering to the guidelines and procedures to which it holds governments accountable. These include the Refugee Status Determination Handbook and its Training Module on Interviewing Applicants for Refugee Status (Status Interviews Training Module).178
UNHCR in Kenya lacks the capacity to meet guarantees and principles stated in its own guidelines on status determination. Insufficient funding, while certainly a limitation on the resources available, is often presented as the justification for lack of efficiency and fairness in the status determination process. 179
Failures of Accessibility and Registration
The only way asylum seekers can receive status and protection from UNHCR or the Kenyan government is if they are recognized as refugees by UNHCR, but, as already noted, since the status determination process is rife with delays, refugees in Nairobi are vulnerable for months at a time before the process is complete.
Of course, UNHCR cannot be held responsible for asylum seekers who do not come forward to present their claims, but at the same time, misinformation in the refugee communities about prejudice against certain groups of refugees is not being countered by UNHCR. Jacques P., a young Rwandan Tutsi refugee, explained his decision not to present his claim to UNHCR:
In 1994 my father was killed. In 1996 I went to Tanzania, but then everyone had to go back to Rwanda.180 In Rwanda, they said I had to go into the military but I refused, so they put me in prison. When I was in prison they beat me and I had to go to the hospital for treatment. My mother told me I had to flee from Rwanda. On August 5, 2001 I fled to the DRC and from there I went to Uganda. But in Uganda, I found the same soldiers that I was running from in Rwanda, the same ones who had tortured me there and I was afraid to stay in Uganda. So, on December 19, 2001 I fled to Nairobi. Even here the Hutu are against me. A group of them came to my small room in Riruta in the night... [they attacked me] and they cut me. I have security problems all the time walking around, going out. It is as if I cannot move. I am afraid to go to UNHCR because so many Rwandese have been rejected. I am not accepted here by UNHCR, and I am not accepted by the Hutu. I am not accepted at home in Rwanda either. I have nothing left.181
Moreover, contrary to the "widely recognized principle that children must be among the first to receive protection and assistance,"182 unaccompanied and separated children and women at risk are not being identified by UNHCR when they first appear in the registration sheds. As a result, women and children are waiting for several months to be interviewed by UNHCR, and must fend for themselves before and often after they are seen by the agency. By conducting interviews at random in the slum neighborhoods where refugees and asylum seekers live, Human Rights Watch identified the following individuals who were in need of special attention but did not receive it even after registering for an appointment with UNHCR:183
· Beatrice G., fourteen-year-old Rwandan girl living with an elderly priest.184
· Pauline F., a sixteen-year-old Rwandan girl living with her five-year-old sister.185
· Gaetan B., a fourteen-year-old boy from Baraka in South Kivu, DRC,186 who was visibly frightened and trembled during his interview with Human Rights Watch. He slept in front of UNHCR's office from May 31, 2002 until April 2, 2002, but was told to move by UNHCR security staff. He was given an appointment on April 2, 2002 for August 14, 2002.
· Amina F., introduced above, who had been sleeping outside UNHCR's offices and was only transferred to safe housing after she had been gang-raped by four men, one of whom sliced her thigh open with a knife.187 Her case shows how in some cases UNHCR takes action only after a separate serious incident proves that a particular unaccompanied child or young woman is at risk.
Finally, since accessing UNHCR is so difficult, it is particularly problematic for recognized refugees to add new family members to their files. This violates UNHCR's own recognition that birth registration is "essential"188 for "activating certain rights"189 and that "refugee women... have access to whatever registration process is used."190 For example, a Congolese refugee had been repeatedly visiting UNHCR's offices for eight months to add his eight-month-old daughter to his file. Another female refugee had experienced difficulties adding her husband and three-year-old son, who had arrived after her, to her file. She said, "I have been explaining to UNHCR for so many years, and now I want my husband and son on my papers. But they listen to men, not women. Because I am a refugee woman they are not treating me as they treat others. When I go to HCR I have to wait a whole day."191
The Problem of Delays
A foremost concern stemming from the lengthy status determination processes in Nairobi is that asylum seekers waiting for interviews lack the protection and assistance guaranteed them by international law and UNHCR policy.192 This is in direct contradiction to UNHCR's mandate and leaves asylum seekers vulnerable to harassment and abuse.
The three to four month waiting time for an appointment is bad enough, but Human Rights Watch met very few refugees who had actually been seen by UNHCR on the date indicated on their appointment slips.193 Sometimes asylum seekers fear being rejected by UNHCR and they forge the slips, crossing out the original date and writing in a later one themselves. However, this kind of fraud can be detected - genuinely rescheduled appointments are usually written next to, and then when necessary, above the original date - whereas forged ones are often written below or off to the side. In addition, some genuinely re-scheduled appointments are highlighted. Other obvious signs such as signatures supposedly indicating that the same UNHCR officer had signed the slip, but with a different hand, were easy to recognize.
Human Rights Watch examined several credible slips that indicated that appointments had been re-scheduled numerous times. For example, Bernard P., a Rwandan refugee whose slip credibly corroborated his story explained,
When I first went to HCR, it was a Monday. They don't see people on a Monday - only Thursday for Rwandans.194 They took a photo and issued me an appointment slip.... I had my first appointment on May 11, 2001. I went there and they didn't let me see them, I was there at 8:00 a.m., and they took my paper and other people's papers and then they came back at 3:00 p.m., and they said they couldn't see me and then I was re-scheduled for July 30, 2001. I came back again, and again they couldn't see me, so I was rescheduled for December 6, 2001. I came back then and they rescheduled me for April 17, 2002.195
Delay sometimes arises for reasons other than appointment re-scheduling. An Ethiopian refugee called Abebe S. had been asked to pay a bribe to a UNHCR-employed interpreter196 and was suffering from long processing delays as a result. Abebe S. has been trailed and beaten by security agents from Ethiopia on at least eight occasions and has written to UNHCR to alert them to the problem repeatedly. He explained how the request to pay a bribe has added to the delays plaguing his case:
I arrived in Nairobi on February 10, 2000. On February 16, 2000 I went to UNHCR to seek an appointment. Unfortunately, my appointments were rescheduled for two months later. I became frustrated with this and asked a translator who worked with UNHCR to shorten my appointment [to give Abebe S. an appointment sooner]. Instead, he took me aside and said I could "get resettlement" if I paid [U.S.]$3,000. But, I am a simple refugee with no money. I could not pay such a high price!
On September 18, 2000 I was finally called by the same translator for my appointment. He only talked with me for thirty minutes. Now, this translator, the same one who asked for money has been resettled to the United States in June or July 2001. On October 2, 2000 I received a letter indicating I was rejected from refugee status. I knew this was because I had refused to give the [U.S.]$3,000. I wrote a letter of appeal. I received an appointment slip for my appeal interview to happen on November 22, 2000. I went to UNHCR for my appointment on November 22, 2000. They rescheduled me for January 15, 2001...
I went for my interview on January 15, 2001 and again they rescheduled me for January 23, 2001. I went again to UNHCR on January 23, 2001. The man I met asked me "are you coming on hand?" [meaning - do you have money?] I challenged him that the question was not a correct one for him to ask me. He kept joking with me, and I started crying because I was so frustrated. He didn't talk to me about my problems, he just sent me away. But before I left he told me, "I hate poor people." I asked for another appointment since that man didn't talk to me about my case. He wrote a date on my slip, but only later I realized it was for February 3, 2001-which is a Saturday and not a work day! I was so frustrated .... On April 26, 2001 I received a call to go to an interview with UNHCR on my appeal. I went for that interview, but I still have had no decision... I remain without status or any decision on my case until now.197
Rescheduled appointments, just like the original delays, are a terrible source of stress in the refugee community. Moreover, because these practices leave asylum seekers and refugees vulnerable to human rights abuse, they constitute a dismal failure by UNHCR to fulfill its protection obligations. Olana T., an Ethiopian refugee who had been tortured in Ethiopia and with serious security concerns in Nairobi went to UNHCR's office on December 5, 2001. He was given an appointment slip for April 15, 2002. However, he became increasingly afraid for his security and went to UNHCR repeatedly asking that he be interviewed sooner. These interventions resulted in him being granted an appointment for March 6, 2002. He explained,
I went there on March 6 and they said they couldn't see me so they rescheduled for March 16, 2002. Again I went there and they gave me another one for March 26, 2002. When I went on March 26, 2002 they told me there was no one to interview me so come back on April 15, 2002. I was there on April 15, 2002 until 6:00 p.m. and the guards told me I had to get out. When I first arrived they had collected my papers in the morning. When the guards told me to leave they didn't give me my papers again. My paper went in in the morning and it never came out again. I said to them "I'm here now and I will stay the night here unless you give me the paper back." I said "I cannot go on the street without my paper." I spoke to the interpreter and said, "give me my paper back." He explained to me nicely that he would let me in first thing in the morning even though I had no slip. He told me to go home. I refused to leave their offices and they said they would call the police. So I told them I would sleep the night under the tree.
I went in the morning and the interpreter let me in as he promised. He saw me soaked from the night of rain but he couldn't trace my paper. He gave me a whole new paper, but this time I got an appointment for tomorrow [April 18, 2002]. I'm really scared even to go back. I am really scared whether the Ethiopian security has something to do with all these problems I am having. I am scared to go to UNHCR... I wish I had another place to run to, but this is the only place I could find.
After all the trouble of the past nine years it is this problem with UNHCR that causes problems with my mind and my body. Now more than ever I feel my body and my mind giving up on me. I have a severe headache problem and I just can't think anymore. It seems like my hope of life is getting dim. At times I cannot hear properly.198
On April 18, 2002 Olana waited at UNHCR for the whole day. However, UNHCR did not see him. In the morning they had collected the second appointment slip, but they refused to replace it when he was not seen that day. An altercation broke out when he again refused to leave without a new appointment slip. A UNHCR staff security officer took Olana out of the compound. Olana told a Human Rights Watch researcher he was beaten on the back and on his hand and that other refugees witnessed the incident.199
Procedural Deficiencies in the Status Determination Process
It is undeniable that UNHCR officers conducting status determinations face heavy responsibilities. There is little time to do thorough investigations into the facts of a refugee's circumstances, and the opportunity for monitoring and evaluation of their work is rare. However, contrary to its own training manual, UNHCR staff members regularly fail to provide information about the status determination process or to review the asylum seeker's rights with them prior to the interview.200 The interviews last, on average, for forty minutes.201 In many cases of rejection, UNHCR is unable or unwilling to provide reasons to the asylum seekers
The caseload in Nairobi is enormously complex. Many of the asylum seekers have suffered years of torture or other personally traumatic events, such as rape. Interviewing these types of victims takes time and skill. The intensity of the issues can lead to burnout in protection staff responsible for doing the interviews, and can re-traumatize the asylum seeker. The result is that asylum seekers may be prevented from communicating all the necessary details in their cases, and some may be wrongfully rejected or will not be referred to services they need.
Some asylum seekers interviewed by Human Rights Watch believed that the UNHCR interviewer did not spend enough time to fully understand the facts of the case. Others explained that they were unable to communicate all the details of their stories because they were asked to stop or edit themselves by UNHCR protection officers or translation staff, a common avoidance reaction among overly stressed humanitarian workers.202 However, such incidents are in violation of the standard established in the Refugee Status Determination Handbook that the examiner should "ensure that the applicant presents his case as fully as possible and with all available evidence."203 UNHCR examiners who do not allow asylum seekers to fully explain themselves or refuse to examine whatever evidence is available, including physical evidence, are shirking their duties to fully consider the applicant's case.
For example, Ahmed S. from Bale province in Ethiopia was detained by the government of Ethiopia from August 1992 until October 1994. During this first period of detention, "I was tortured and beaten. I was beaten on the soles of my feet and with a plastic whip and they would take me out at night and threaten to shoot me." 204 At a government rally in February 1998 to garner support and recruit soldiers for the war with Eritrea,205 Ahmed said he shouted from the crowd, "what benefit will that war have for the Oromo people?" He explained what happened next:
They arrested me for asking a wrong question. I was held at Goba again, and this time they poured [hot] oil on my body. They also heated nails and pressed them into my skin [the scars resulting from both sets of injuries were viewed by a Human Rights Watch researcher]...
I crossed the border on February 21, 1999 on foot. I came to UNHCR in February 1999. They gave me an appointment for one month later. But at the interview they didn't let me show them the tortured places - they told me they didn't want to see that. I wasn't allowed to explain my problems very well. They didn't allow me to.206
Bela K. is a young Congolese refugee who had been violently attacked and witnessed both of her parents killed by "militaires"(soldiers) in Congo in 1997 when she was twelve years old. She fled a few days later with her sister who became ill and died during their flight. Bela became pregnant after a relationship she had with the man who ran an orphanage she was placed in after her sister's death. Now, at the age of seventeen, she had a young son to care for while living as a refugee in Nairobi. She explained what happened when she first arrived in Nairobi and was interviewed by UNHCR:
On May 30, 2001 I had an interview with UNHCR. The translator kept telling me not to cry because the officials would think I was afraid of talking and not telling the truth. But I was crying because of what has passed in my life!207
The doubts that these interviewees had are only exacerbated by the fact that there is often no way of determining the accuracy of the transcript as prepared by the protection officer. UNHCR's training manual recommends that the person conducting the interview read back notes to the asylum seeker in order to ensure accuracy.208 However, few refugees interviewed by Human Rights Watch were provided with such an opportunity. Refugees might also gain confidence in UNHCR's procedures if they were allowed to bring legal representatives with them to their interviews. UNHCR's guidelines recognize the value of independent legal assistance for those applying for refugee status with governments, but these representatives are rarely allowed into UNHCR-run status determinations. Finally, an applicant's appeal is often reconsidered by the same UNHCR office. Thus, in countries like Kenya where the government does not conduct its own status determinations, UNHCR is both the judge of refugee status and the protector/provider for refugees at every stage of the process.209
As this section has demonstrated, the UNHCR-run status determinations in Nairobi are rife with problems. The UNHCR office is not physically accessible for many asylum seekers, and even for those who manage to have their status assessed, the office's lack of accessibility for updating files and registering births causes ongoing problems. Inaccessibility is also preventing at-risk asylum seekers from being identified and referred to needed services at an early stage. All asylum seekers are subject to extremely serious delays in the processing of their claims, which leaves them vulnerable to abuse. In the status determination interviews with UNHCR protection staff, the agency is falling short of its own standards on keeping applicants informed about their rights and the procedures to be followed, and on conducting interviews in a manner that allows all the evidence to be considered. Finally, the agency's conflicting roles as service provider and status adjudicator cause refugees to lack confidence in the system. It is this last problem that provides the strongest rationale for the Kenyan government to fulfill its responsibility to conduct status determinations.
There is no doubt that some of these serious deficiencies are due to UNHCR's resource limitations. For example, UNHCR has had to re-direct its protection staff to other tasks, most notably in Nairobi, to the processing of thousands of Somali Bantu resettlement files for the United States government in late 2001 (see below).210
175 See UNHCR, 2002 Global Appeal, "UNHCR's Protection Mandate," p. 21.
176 See UNHCR, 2002 Global Appeal, "UNHCR's Protection Mandate," p. 21.
177 See "Follow-up on Earlier Conclusions of the Sub-Committee on the Determination of Refugee Status, inter alia, with Reference to the Role of UNHCR in National Refugee Status Determination Procedure," UN Doc. EC/SCP/22, August 23, 1982.
178 The Training Module states that it is to be used by "UNHCR and government personnel involved in refugee status determination procedures in the field." In addition, the module advises decision makers that they "should never forget that being recognized - or not - as a refugee will have direct implications on the life and well-being of the applicant and his or her family. This places a heavy burden of responsibility on the person conducting the interview whether or not this person is the final decision maker." See UNHCR, Training Module on Interviewing Applicants for Refugee Status, 1995, p. iii.
179 The importance of guaranteeing the efficiency and fairness of these procedures has been reiterated by UNHCR's ExCom on several occasions. See, e.g. ExCom General Conclusions on International Protection No. 71 (1993) and 82 (1997).
180 On December 5, 1996, the Tanzanian government and UNHCR issued a joint declaration setting a deadline of December 31, 1996 for the return of all Rwandan refugees living in Tanzania. Two weeks later, a stand-off developed between camp leaders who were resisting return and the Tanzanian army. Ultimately close to 500,000 Rwandan refugees were sent home, many "under military escort." See UNHCR, The State of the World's Refugees, 1997, p. 22.
181 Human Rights Watch interview with refugee, Nairobi, Kenya, April 4, 2002.
182 See "Refugee Children," ExCom Conclusion No. 47, 1987, para. (c).
183 For its part, UNHCR responded to this criticism by stating that "we identify women and children and refer them to camps immediately" after registration. Human Rights Watch interview with UNHCR official, Nairobi, Kenya, April 18, 2002.
184 Human Rights Watch interview with refugee, Nairobi, Kenya, April 3, 2002.
185 Human Rights Watch interview with refugee, Nairobi, Kenya, April 3, 2002.
186 South Kivu has also been the scene of fierce fighting between the Mai-Mai, RCD-Goma (Rwandan-backed) and various other armed groups. In October 2001, thousands of Congolese fled South Kivu province to escape the clashes. See "Refugees Flee Fighting," Monitor (Kampala, Uganda), October 27, 2001. More recently, fighting over the town of Walungu in South Kivu has been reported by Western media. See Agence France-Presse, "Rebels Retake Congo Town from Mai-Mai Traditional Warriors," February 11, 2002.
187 Human Rights Watch interview with refugee, Nairobi, Kenya, April 5, 2002.
188 UNHCR, Guidelines on Refugee Children, 1994, p. 103.
190 UNHCR, Guidelines on the Protection of Refugee Women, 1991, p. 33.
191 Human Rights Watch interview with refugee, Nairobi, Kenya, April 24, 2002. The allegedly discriminatory treatment that this woman encountered is contrary to many ExCom conclusions, including No. 73 (1993), which calls upon States and UNHCR "to ensure the equal access of women and men to refugee status determination procedures and to all forms of personal documentation relevant to refugees' freedom of movement, welfare and civil status."
192 UNHCR informed Human Rights Watch that as of September 2002, asylum claims were being processed "in about three months after registration." Written comments from UNHCR Branch Office Nairobi, October 8, 2002.
193 See Annex B for an example of a UNHCR appointment slip.
194 UNHCR has instituted a policy of only seeing refugees from particular countries of origin on particular days.
195 Human Rights Watch interview with refugee, Nairobi, Kenya, April 3, 2002.
196 For further discussion of the problem of corruption, see section entitled "Problems Plaguing Resettlement in East Africa," in Part IV, below.
197 Human Rights Watch interview with refugee, Nairobi, Kenya, April 5, 2002.
198 Human Rights Watch interview with refugee, Nairobi, Kenya, April 17, 2002.
199 Human Rights Watch interview with refugee, Nairobi, Kenya, April 18, 2002.
200 See UNHCR Training Module, Interviewing Applicants for Refugee Status, 1995, p. 14 (explaining that "before commencing the interview the applicant must be provided with certain information... [including] the applicable refugee definition; the procedures followed with respect to the determination of refugee status.").
201 Human Rights Watch interview with a person wishing to remain anonymous, Nairobi, Kenya, April 22, 2002.
202 See e.g. Danieli, Rodley, Weisaeth eds., International Responses to Traumatic Stress, 1996 at 410 ("when working with victims of disasters, helpers often experience an array of stress (countertransference) reactions [including] 1) avoidance reactions, characterized by distancing, denial, detachment, and withdrawal.").
203 UNHCR, Status Determination Handbook at para 205 (i).
204 Human Rights Watch interview with refugee, Nairobi, Kenya, April 6, 2002.
205 On May 6, 1998 Eritrea launched what Ethiopia claimed was a "war of aggression" along the border region between the two countries. Eritrea, on the other hand, claimed that Ethiopia was encroaching on its territory and demanded the withdrawal of Ethiopian troops from the region. The disputed border region between the two countries had been a major source of contention for the past half decade since Eritrean independence. This war continued for two years causing tens of thousands of deaths until a peace accord was signed between the two countries in December 2001, although sporadic fighting continued until recently. See Agence France-Presse, "Ill-defined Border at Heart of Asmara, Addis Ababa Row," May 19, 1998; Agence France-Presse, "Eritrea Stands Firm in Border Dispute with Ethiopia," May 21, 1998; Hisham Aidi, "The End of a 1000-Day War: Ethiopia and Eritrea Sign Peace Accord," (available at http://www.africana.com /DailyArticles/index_20010102.htm.).
206 Human Rights Watch interview with refugee, Nairobi, Kenya, April 6, 2002.
207 Human Rights Watch interview with refugee, Nairobi, Kenya, April 22, 2002.
208 See UNHCR, Training Module: Interviewing Applicants for Refugee Status, 1995, p. 55 (noting that "a useful technique is to read back or go over those parts of the claim which remain unclear.").
209 See Verdirame, Guglielmo. "Human Rights and Refugees: The Case of Kenya," Journal of Refugee Studies, Vol. 12, No. 1, 1999.
210 Human Rights Watch interview with UNHCR official, Nairobi, Kenya, April 18, 2002.